FOREST COUNTY POTAWATOMI COMMUNITY 

COMMENTS 

ON 

PROPOSED NATIONAL EMISSION STANDARDS 

FOR 

HAZARDOUS AIR POLLUTANTS; 

AND, IN THE ALTERNATIVE, 

PROPOSED STANDARDS OF PERFORMANCE 

FOR 

NEW AND EXISTING STATIONARY SOURCES: 

ELECTRIC UTILITY STEAM GENERATING UNITS; PROPOSED RULE 

DOCKET ID NO. OAR-2002-0056 
TABLE OF CONTENTS 

I. Executive Summary .......................................................................................................1 

II. Significant Health and Economic Impacts of Mercury ..................................................2 

A. Severe Health-Related Impacts, Especially to Newborns ........................................2 

B. Economic Cost of Mercury’s Health-Related Impacts ............................................3 

C. Other Economic Costs Associated with Mercury-Related Contamination ..............3 

D. Tremendous Natural Resource Damages Caused by Mercury Deposition ..............4 

III. Background Regarding FCPC and Heightened Mercury Impacts on the Tribe ............5 

A. FCPC History and Treaties ......................................................................................5 

B. FCPC’s Reservation .................................................................................................5 

C. Critical Importance of Pure Water and Food Resources to Tribal Way of Life ......6 

D. Devils Lake ..............................................................................................................8 

E. Tribal Members Face Substantially Increased Health Risks Because of their 

Higher Consumption of Fish and Because of the Significant Mercury Impacts to 

Devils Lake and Other Water Bodies Near the FCPC Reservation .......................10 

F. Unique Cultural Impacts Because of Limitations on Ability to Engage Fully in 

Subsistence and Cultural Activities .......................................................................11 

IV. Special Status of FCPC in Making Comments ............................................................12 

A. EPA’s Trust Responsibility and Obligations under Environmental Justice 

Doctrine with Respect to Tribe’s Impacted Trust Assets ......................................12 

B. FCPC’s Special Expertise Regarding Mercury and Mercury-Related Impacts to 

the Tribe and Its Members .....................................................................................19 

V. Utility Coal Plants are the Key Cause of Mercury Impacts in U.S. Waters ................20 

A. Utility Units Make Up Largest Domestic Anthropogenic Source of Mercury 

Emissions ...............................................................................................................20 

B. EPA’s Finding of “Plausible Link” Between Utilities and Mercury in Fish .........20 

C. Florida DEP and Other Findings that Removal of Mercury Emissions Results in 

Direct, Substantial, and Timely Reductions of Mercury in Fish and Wildlife ......20 

VI. MACT Regulation Under Section 112 of CAA is Legally Required ..........................21 

A. EPA’s Regulatory Finding that Regulation of Utility Units Under Section 112 is 

Appropriate and Necessary Cannot be Reversed ...................................................21 

B. EPA’s Arguments in the Pre-amble to the Proposed Rule to Avoid MACT 

Regulation Lack Merit ...........................................................................................22 

C. NRDC Settlement Requires EPA to Regulate Utility Units Under Section 112 ...26 

D. The Trust Responsibility Requires EPA to Regulate Under MACT .....................27 

VII. EPA’s MACT Floor Analysis is Improper and Sets Emission Limits that Are Several 

Times Higher than Appropriate ...................................................................................29 
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A. EPA’s Methodology for Developing MACT Floor Must be Reasonably Based 

(i.e., it must reasonably estimate the performance of the relevant best-performing 

plants) and must be demonstrated with substantial evidence ................................29 

B. EPA’s Proposed Methodology Fails to Reasonably Estimate the Performance of 

the Relevant Best-Performance Plants and EPA Cannot Demonstrate that its 

Methodology is Reasonably Based Because It Improperly Uses a Short-Term 

Worst-Case Analysis to Develop a Long-Term Average Standard .......................29 

C. Trust Responsibility Heightens EPA’s Responsibility to Properly Develop MACT 

Floor .......................................................................................................................35

D. EPA’s Improper Calculation of the MACT results in a Mercury Standard that is 

Up to Five Times Higher than Appropriate ...........................................................36 

VIII. Need for EPA to Set Standard More Stringent than MACT Floor ..............................38 

A. EPA Must Establish a MACT Standard that Results in Maximum Degree of 

Reduction Achievable Considering Costs and Other Concerns ............................38 

B. Trust Responsibility Requires EPA to Go Beyond the MACT Floor ....................44 

IX. Regulation Under Section 111 .....................................................................................44 

A. EPA is Required to Regulate Under Section 112, Not Section 111 ......................44 

B. Even if EPA Could Properly Regulate Mercury Emissions from Utility Units 

Under Section 111 Rather than Section 112, Its Proposed Cap-and-Trade Program 

Fails to Meet Clear Clean Air Act Requirements ..................................................44 

C. Any 111 Standard Should be at Least as Stringent as a Property Implemented 

MACT Standard .....................................................................................................47 

D. The Presumed Efficiencies Inherent in a Trading Program Support a Cap Lower 

Than that Achievable with a Traditional MACT Standard ....................................48 

E. Under Trust Responsibility, EPA is Required to Act More Quickly and Forcefully 

in Regulating Mercury Emissions Under Section 111 ...........................................48 

X. Trading Program Must Address “Hot-Spots” ..............................................................48 

A. Hot-Spots in Upper Midwest Are a Real Concern Because of the Use of Western 

Subbituminous Coal, From Which It is More Difficult to Obtain Mercury 

Reductions than Eastern Bituminous Coal ............................................................49 

B. Requirement Under Trust Responsibility and Environmental Justice Doctrine to 

Fully Analyze and Address Hot-Spot Concerns to Ensure that Tribes are Not 

Adversely Effected .................................................................................................50 

C. Potential Means of Preventing Hot-spots ..............................................................50 
I Executive Summary. 

The Forest County Potawatomi Community (“FCPC” or the “Tribe”), a federally 

recognized Indian tribe located in northern Wisconsin, respectfully submits these comments, on a 

government-to-government basis, with respect to the Environmental Protection Agency’s 

(“EPA”) Proposed National Emission Standards for Hazardous Air Pollutants; and, in the 

Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: 

Electric Utility Steam Generating Units. FCPC’s comments focus on EPA’s proposed standards 

for mercury emissions from coal-fired power plants. 

While FCPC recognizes the difficult role that EPA serves in balancing the numerous 

interests affected by this proposed rule, the Tribe is troubled by the low level of control that EPA 

proposes, as well as the unduly long time frame that EPA proposes to implement that control. 

As outlined below, FCPC and its members have faced and will continue to face disproportionate 

health, environmental, and cultural impacts from the deposition of mercury from coal-fired 

power plants. FCPC and its members face these disproportionate impacts because of their 

traditional subsistence way of life, which includes a heavy reliance on fish and other natural 

resources. Moreover, Devils Lake, which is an important traditional cultural resource of the 

Tribe and which is located on the FCPC Reservation, has been severely impacted by mercury 

deposition, which has lead to high levels of methylmercury in the lake and its fish. 

Because of the heightened impacts that FCPC and its members face from mercury 

deposition from coal-fired power plants, EPA’s trust responsibility and its obligations under the 

Environmental Justice Doctrine require it to ensure that mercury emissions be fully regulated in 

accordance with law and be reduced to the extent feasible. Unfortunately, EPA’s proposed 

mercury rule does neither. 

Contrary to the requirements of the Clean Air Act, EPA’s proposal fails to fulfill its legal 

obligation to regulate mercury emissions from power plants under section 112. Moreover, even 

with respect to its alternative proposal to regulate under section 112, EPA makes clear errors, 

which result in a proposed standard that allows several times more emissions than appropriate. 

As demonstrated in these comments, proper calculation of the MACT floor standards for the five 

subcategories that EPA proposes would result in standards for existing sources that allow less 

than one-half to less than one-fifth of the emissions that EPA’s proposed MACT standards would 

permit. Likewise, proper calculation of MACT floor standards for new sources results in 

standards that for bituminous-, subbituminous-, and lignite-fired facilities allow approximately 

one-half to less than one-fourth of the emissions that EPA’s proposed MACT standards would 

permit. 

EPA’s MACT floor analysis, which appears to adopt the methodology proposed by a 

utility trade group, improperly uses a short-term worst-case analysis to develop its long-term 

average standard. Under this approach, EPA discards the 97.5 percent best emission reductions 

and develops standards based on the 2.5 percent worst emissions from relevant sources. 

Contrary to the requirements of the Clean Air Act, EPA’s analysis also further increases the 

allowed emissions under the MACT floors by improperly considering units for which it has no 
2

data. Moreover, even if EPA could properly consider such units, its approach results in a 

standard that has a 99 percent certainty to overstate the average emissions of such units. 

In addition to proposing an improper MACT floor, EPA fails to consider numerous 

available additional pollution control techniques, which would result in emissions that are 

substantially more stringent than the proposed MACT floor. Indeed, these comments include a 

report by a mercury control technology expert that identifies numerous control techniques that 

are available at this time to achieve greater than 90 percent control. This level of control should 

be imposed regardless of whether EPA correctly issues a MACT standard under section 112 or 

continues to attempt to regulate under section 111. 

Finally, EPA’s proposed trading program is not authorized under section 111 or 112 and 

creates grave concerns regarding high levels of localized mercury impacts. This concern is 

especially great in areas such as Wisconsin, which use western subbituminous coal. To address 

these concerns, EPA must either abandon its trading program or take substantial steps to rectify 

the significant localized problems that it creates. 

Because of the significant impacts that mercury contamination have caused to FCPC and 

its way of life and because of the significant concerns that FCPC raises in these comments, 

FCPC formally requests a meeting with EPA to discuss mercury impacts to the Tribe and 

FCPC’s comments on EPA’s proposed rule. FCPC makes this formal request in accordance with 

EPA’s trust responsibility and its obligations under the Environmental Justice Doctrine. 

II Significant Health and Economic Impacts of Mercury. 

FCPC and its members are very concerned about the health and economic impacts of 

mercury deposition. As the EPA recognizes in the preamble to its proposed rulemaking and 

elsewhere, mercury is widely recognized as causing very serious health impacts to a very large 

portion of the American people. In addition to significantly affecting and ruining the lives of 

literally hundreds of thousands of people, these adverse health effects are recognized by EPA 

and others to cause billions of dollars of economic impacts. 

In addition to the health impacts that EPA notes, mercury contamination has been found 

to cause learning and educational impacts that have resulted in significant costs to our country 

and its people. Also, it is important to note mercury’s tremendous tourism-related costs to states, 

like Wisconsin, and especially rural areas, like those near the FCPC reservation, that rely heavily 

on tourism associated with recreational fishing. Finally, mercury contamination to lakes and 

streams and the fish that inhabit them causes tremendous natural resource damages that need to 

be considered when evaluating the costs of mercury contamination. 

A. Severe health-related impacts, especially to newborns. A very large portion of the 

American population is significantly impacted by mercury contamination. Indeed, mercury 

impacts have reached epidemic proportions. As EPA notes in this proposed rule-making, a 

recent analysis of U.S. Centers for Disease Control data shows that approximately 8 percent of 

women of child-bearing age have levels of mercury in their blood that are at or above 

U.S. EPA’s RfD. 69 Fed. Reg. 4658. Moreover, because mercury in the blood readily passes 
3

from the mother to her unborn child, EPA has noted that “the developing fetus is considered 

most sensitive to the effects of methylmercury.” 69 Fed. Reg. 79829. Because of this, EPA’s 

own scientists have concluded that 630,000 infants born each year may be adversely effected by 

mercury. See Inside EPA’s Clean Air Report, Vol. XV, No. 4, Pg. 13 (February 12, 2004). 

B. Economic cost of mercury’s health-related impacts. The significant and pervasive 

impacts of mercury have a great economic cost to the United States. As EPA recognizes, its 

proposed mercury reductions would save approximately $15 billion (in 1999 dollars) in healthrelated costs. See 69 Fed. Reg. 4710 (emphasis added). However, this number likely 

underestimates the true health related costs associated with mercury emissions. For example, 

EPA likely did not consider the costs related to the overall lowering of IQ levels as a result of 

mercury emissions. As recently reported in the Milwaukee Journal Sentinel, Mr. Michael 

McCalley, a professor of community and preventive medicine at New York’s Mount Sinai 

School of Medicine, and president of Physicians for Social Responsibility has estimated the 

diminished lifetime earnings that result from the lowering of IQ in the general population as a 

result of exposure to mercury at approximately $2.3 billion per year. See Milwaukee Journal 

Sentinel, Mercury’s dangers persist, Section G1 (April 12, 2004).1

Moreover, it is important to note that the $15 billion in health-related benefits 

acknowledged by EPA do not reflect the full benefits that would be realized if a correct level of 

mercury reductions (e.g., 90 percent) were required from power plants. Rather, these benefits 

simply relate to the health impacts that would be avoided with the very limited mercury 

reductions that EPA now proposes. They do not reflect the additional billions of dollars in health 

cost savings and the thousands of deaths that could be avoided and lives that could be 

dramatically improved with a proper level of mercury control. 

C. Other economic costs associated with mercury-related contamination. It is also 

important to note that the $15 billion in health-related costs do not include any of the significant 

tourism-related impacts caused by the significant mercury contamination in the nation’s waters. 

As EPA is aware, mercury pollution has contaminated 12 million acres of lakes, estuaries, and 

wetlands (30 percent of the national total) and 473,000 miles of streams, rivers, and coast lines. 

For Great Lakes states, such as Wisconsin, that are blessed with rich water resources, and 

therefore rely heavily on recreational tourism associated with fishing, the situation is even worse. 

As Wisconsin’s Attorney General Lautenschlager testified in this rule-making 

proceeding, the Wisconsin Department of Natural Resources “has found that atmospheric 

mercury deposition has contaminated nearly all of the state’s 15,000 lakes and 57,000 miles of 

rivers and streams to some level. This contamination has resulted in a state-wide fish 

consumption advisory.” (Emphasis in original). This level of mercury contamination is not 

unique to Wisconsin. For instance, Wisconsin’s Great Lakes sister states of Illinois, Indiana, 

Minnesota, Michigan, and Ohio have all also issued mercury fish advisories for 100 percent of 

their lakes or rivers, or both. 

 

1

 This article is available at http://www.jsonline.com/alive/news/apr04/221511.asp. 
4

Wisconsin’s Department of Natural Resources is also in the process of conducting 

individual testing of specific water bodies, and has thus far identified at least 84 with 

unacceptably high concentrations of mercury. This has resulted in even more stringent 

advisories than the general state-wide advisory. Exhibit A, WDNR Mercury Advisory Update. 

These individual advisories mean that fewer fish or no fish should be consumed from these water 

bodies. These specially impacted lakes include Deep Hole Lake, Julia Lake, Little Sand Lake, 

Roberts Lake, and Van Zile Lake, all of which are close to the FCPC reservation in Forest 

County. Indeed, the Tribe owns fee land that is adjacent to Deep Hole Lake and within a couple 

hundred yards of Little Sand Lake. 

As Attorney General Lautenschlager testified, the economic concerns associated with 

mercury contamination in Wisconsin are tremendous. Each year, the Wisconsin Department of 

Natural Resources sells approximately 1.5 million fishing licenses. Attorney General 

Lautenschlager testified that the sales of these licenses, as well as of food, lodging, gasoline, and 

sporting equipment related to fishing as an activity, resulted in a total yearly economic impact of 

approximately $2.1 billion, with the sports fishing industry accounting for approximately 

30,500 jobs in the state each year. Again, Wisconsin is not alone in its reliance on and benefits 

from recreational fishing. Wisconsin and its Great Lakes neighbors of Illinois, Indiana, 

Michigan, Minnesota, and Ohio together serve over 7.8 million anglers and, not including direct 

payments to the state in the form of fishing licenses and taxation, these states’ economies receive 

over $5 billion in fishing-related income.2

By failing to appropriately and fully address the significant mercury contamination from 

power plants, EPA is continuing to hold back and threaten the important fishing-related 

economies in the Great Lakes states and the nation as a whole. In Wisconsin alone, EPA is 

putting at risk billions of dollars in economic activity and tens of thousands of fishing-related 

jobs. 

D. Tremendous natural resource damages caused by mercury deposition. The deposition 

of mercury from coal-fired power plants and other industrial sources into the lakes, streams, and 

other water bodies also has caused and continues to cause tremendous natural resource damages. 

As a consequence of mercury deposition, millions of acres of lakes and hundreds of thousands of 

miles of rivers, streams, and coast lines are contaminated. Moreover, the natural conversion of 

the deposited mercury to poisonous methylmercury and the bioaccumulation of methylmercury 

in fish and other living organisms has created and continues to create significant natural resource 

damages. Indeed, given the likely billions of contaminated fish, on top of the millions of acres 

and thousands of miles of contaminated water bodies, the financial costs of these damages is 

likely in the hundreds of billions of dollars. 

 

2

 U.S. Department of Interior, Fish and Wildlife Service, U.S. Department of Commerce, U.S. Census Bureau, 2001, 

National Survey of Fishing, Hunting, and Wildlife associated recreation. FHW/01-Nat. October 2002. Tables 55 

and 64. 
5

III Background regarding FCPC and heightened mercury impacts on the tribe. 

A. FCPC History and Treaties. According to the Potawatomi tradition, FCPC originated 

on the eastern seaboard and, in company with their fellow Algonquian speaking ancestors of the 

modern Ojibwe and Odawa, migrated west until they settled in southern Michigan. During the 

mid-seventeenth century attacks by Iroquoian people drove them west of Lake Michigan. From 

this refuge they eventually reoccupied their former territory in Michigan and by the early 

eighteenth century were expanding into adjacent areas of northern Indiana and Illinois, as well as 

eastern Wisconsin. 

By the late 1820s the Potawatomi were the predominant tribe in this large territory that 

included all of the west shoreline of Lake Michigan between Green Bay and Chicago, east across 

the lower peninsula of Michigan and northern Indiana, and west across southern Wisconsin to 

the Mississippi and south to the Illinois River. At the same time, however, pressure from nonIndians for land resulted in numerous treaties made by the United States with the Potawatomi, 

under which the United States acquired much of our ancestor’s aboriginal territory, and in 

exchange, promised to provide them with other lands, funds and resources from which the 

Potawatomi might continue to live. 

By the treaties made in the 1830s, the United States sought to remove the Potawatomi 

from their homelands near the Great Lakes to alternative land west of the Mississippi. Many 

refused to move, and many others returned to Wisconsin following efforts to remove them. The 

FCPC is comprised of those Potawatomi who refused to be relocated. After being forced from 

their traditional villages and settlements, the Potawatomi in Wisconsin began to migrate north, 

generally ahead of the line of settlement and into the remaining unoccupied areas of Wisconsin. 

By 1910, 457 Potawatomi resided in the area of Forest, Marinette, and Oconto Counties. In 

1913, the federal government purchased lands for FCPC using the funds due to the Band under 

their treaties with the United States. FCPC, as a matter of federal law has the right to hunt, fish, 

and gather in its Reservation lands. Menominee Nation v. United States, 391 U.S. 404, 405-13 

(1968) (Indians have the right to hunt, fish, and gather on their reservation lands regardless of 

whether the enactment setting aside their lands makes specific reference to such rights). 

In the years that followed – from 1914 through 1920 and 1928 and 1929 – Congress 

continued to appropriate funds, which were to be reimbursed from the Wisconsin Potawatomis’ 

share of the annuities due under their treaties, for use in building homes and other improvements 

on the lands acquired for the Wisconsin Potawatomis. In 1934, FCPC organized under the 

Indian Reorganization Act. 

B. FCPC’s Reservation. The FCPC Reservation is located in northeastern Wisconsin in 

Forest County. The Reservation consists of 12,000 acres with approximately seventy-five 

percent of the land surrounded by the Nicolet National Forest. The Reservation is sparsely 

populated, remote and largely wilderness. It is dominated by upland hardwood forests, which 

are managed for timber harvest, as well as by wetlands and rivers and lakes. The Reservation 

includes parcels of land scattered amongst three townships, those being Stone Lake (Crandon), 

Wabeno, and Carter. There are two wilderness areas within 10 miles of the Reservation: the 

Catwillow Creek and Headwaters National Wilderness areas. 
6

The FCPC Reservation contains three watersheds: the Upper Wolf, North Branch 

Oconto, and the Peshtigo. All of these rivers are afforded special levels of protection under state 

and federal law. The tributaries for these rivers originate or flow through the Reservation, with 

the majority being high quality trout waters. Four lakes are located within the Reservation. 

Wetland areas are abundant and are habitat for wildlife and home to threatened and endangered 

species. 

About half of its estimated 1,200 enrolled members live on the FCPC Reservation lands. 

The local economy is dominated by tourism and by the timber industry. The FCPC is providing 

jobs for its people through a series of economic development projects. The Tribe uses financial 

resources from these projects to protect its reservation and the pristine lands that surround it. 

For example, it has worked to raise its concerns regarding the proposed highly sulfidic 

Crandon Mine proposal and last year, with the Sokaogon Chippewa Community, purchased the 

5,000 acre mine site, which is rich in forests, wetlands and surface waters, for $16.5 million. 

The then-pending mining permit applications were withdrawn. 

C. Critical importance of pure water and food resources to tribal way of life. In order to 

fully appreciate the impact associated with mercury emissions from power plants, it is important 

to understand the culture and beliefs of the FCPC tribe. This understanding is also critical to a 

legal analysis of the trust responsibility owed by EPA to the Tribe. 

The FCPC ancestors have lived in the Great Lakes area since time immemorial; they have 

occupied eastern Wisconsin since the mid-seventeenth century and Forest County since the latter 

part of the nineteenth century. As they moved into the forested and cut-over area of eastern 

Wisconsin, its people lived from the land. By necessity, they acquired most of their food, 

building materials, and medicine from nature. Although they hunted, fished, and gathered over 

most of the counties of the northeast part of the state, they eventually concentrated their 

subsistence activities in areas in the vicinity of its current Reservation lands in Forest County. 

The close historical link between FCPC members and the natural environment and the 

continuity of this tradition into modern times is well documented. Today, plants and animals 

obtained from the Tribe’s environment are a vital part of the religious rituals, ceremonials, and 

medicines which define unique aspects of tribal life and which form the vital link between the 

Tribe’s cultural past and future. 

Historically, Potawatomi’s conceived of the natural as being controlled by spirits with 

whom the Tribe must maintain harmony and balance in order to assure health and well being in 

the natural world. Today, FCPC members perpetuate these beliefs. As one of the four major 

spirits, water has a role of singular significance in the Tribe’s culture. Water in its pure form is 

needed for FCPC ceremonies and rituals and is essential to preparation of certain medicines and 

foods. For example, water to prepare ritual foods or to mix medicines must be drawn from a 

specific spring, medicinal herbs must come from “clean” or undisturbed ground. Unless these 

conditions are met, the spiritual and therapeutic force of the ceremony or the medicine is lost. 

The purity of water in a cultural sense is distinct from purity from a chemical or scientific 

perspective. Any alteration of the flow and quality of water, including contamination by 
7

airborne emissions, renders water no longer pure for the Tribe’s people. Furthermore, as water is 

sacred and represents life itself, changes to water will also affect the natural resources which rely 

on it to sustain themselves. In the FCPC culture, these changes will upset the balance that plants 

and animals depend on to survive in the natural world. 

The cultural practices associated with FCPC’s Reservation and surrounding lakes and 

forests are hunting, fishing and gathering, as well as ceremonies, rituals, appropriate harvesting 

practices and other actions necessary to maintain harmony and balance between FCPC members 

and the spirit world. It is through these activities that its members fulfill their responsibilities in 

the natural world. This is reflected in the fishing and collecting activities at Devils Lake and 

elsewhere, and the rituals, taboos and appropriate conduct associated with avoiding harm from 

underworld spirits at Devils Lake. 

Cultural beliefs, which include dances, rituals, ceremonies, as well as traditional 

Potawatomi religion and ideology remain the core of life on the FCPC Reservation. These 

activities depend in large part on the natural resources which must be drawn from spiritually pure 

natural environments. Concern about access to these resources and the ability of the 

environment to provide the pure resources needed to sustain FCPC’s culture occupies the 

thoughts and prayers of the community. The long oral and written histories of FCPC members 

confirm that the use of wild game, fish, and plant products gathered from nature, sustained them 

until after the mid-point of the twentieth century. Today these same resources are no less 

important as the source of “pure” foods for ritual and for medicinal purposes and for subsistence 

and craft production. The continued health of the natural world as well as FCPC’s continued 

existence as a people requires the use of these resources to conduct rituals of harmony and 

atonement. 

The Tribe obtains most of the resources that are required to maintain its traditional 

culture, including religious practices, from two “resource catchments” adjacent to and including 

Reservation land. These areas are ecologically diverse and relatively undisturbed by the 

intrusion of exotic species or environmental contamination. Obviously, the maintenance of these 

resource catchments is critical to the Tribe’s ability to maintain cultural continuity with its past. 

The Tribe’s two resource catchments in Forest County have been found eligible for listing on the 

National Register of Historic Places. 

Wetlands and their associated lakes and streams constitute the most important source of 

natural foods and medicines of the FCPC members. Although upland hardwood forests, lowland 

conifer forests, and meadows all produce unique resources necessary for curing, rituals, and 

feasting, it is the open water and wetland environments that yield an estimated two-thirds of the 

resources that are critical for these cultural purposes. For this reason, healthy wetlands are 

critical to the survival of Potawatomi traditional culture. 

The Tribe’s hunters, fishers, and gatherers realize the importance of these natural areas to 

their traditional culture and particularly their spiritual purity, and are anxious to preserve them 

for future generations. 
8

D. Devils Lake. Devils Lake has special significance both culturally and spiritually to 

FCPC and its membership. Understanding of the specific significance of this important resource 

is critical to understanding the need and legal requirements to protect the resource from adverse 

impacts from mercury deposition. 

1. Background regarding Devils Lake. Devils Lake, together with its associated 

wetlands, is approximately thirty-five acres in size and lies entirely within the FCPC Reservation 

in the northwest quarter of section 2 of Lincoln Township. This lake is used as a fishing, 

collecting, and recreation site by the FCPC people. Devils Lake has been determined to be 

eligible for inclusion on the National Register of Historic Places as a traditional cultural property 

on the basis of its religious and spiritual significance to the community. In fact, because of the 

central importance of Devils Lake and the cultural activity that traditionally has occurred and 

continues to occur in the area around the lake, an entire ten-mile diameter resource catchment 

area around the lake has been found eligible for listing on the National Register of Historic 

Places. A map of the Devils Lake catchment area is attached as Exhibit B. 

In the territory formerly occupied by the northern Algonquian tribes, maps will often 

show lakes named Spirit Lake, Manitou Lake or Devil Lake. Invariably, Indian traditions say 

these lakes are bottomless and are connected by underwater tunnels to other water bodies. It is 

by this means that underworld creatures appear unexpectedly in these lakes and why they are 

given their names. FCPC beliefs indicate that Devils Lake on the FCPC Reservation has these 

features. 

2. FCPC’s study of Devils Lake and mercury impacts. Because of the central 

importance of Devils Lake to FCPC’s culture and way of life, the Tribe has devoted substantial 

resources to the study and care of the lake. In particular, because the Tribe has long been 

concerned about potential mercury impacts to the lake, it has devoted substantial tribal resources 

to evaluate mercury contamination in the lake. Beginning in 1995, the FCPC Tribal 

Environmental Protection Agency (“Tribal EPA”) began collecting data regarding the levels of 

mercury and methylmercury in the lake. A comprehensive report that quantifies the Devils Lake 

watershed hydrology and water quality (including waterborne mercury and methylmercury) from 

1995 to 2003 has been prepared for the Tribe by Horsley & Witten, Inc., The “Devils Lake 

Summary Report: Water Years 1996 to 2002” is attached as Exhibit C. 

(a) Dr. Watras’ study of mercury contamination in Devils Lake. Because of the Tribe’s 

significant concerns regarding elevated levels of mercury in the lake, it has devoted almost 

$400,000 to fund further testing and analysis of mercury contamination in Devils Lake by a team 

of experts led by Dr. Carl Watras. Dr. Watras is an internationally recognized expert in mercury 

impacts to fresh water bodies who works with the Wisconsin DNR. A copy of Dr. Watras’ 

curriculum vitae is attached as Exhibit D. Dr. Watras has executed a certification testifying that 

he participated in the drafting of the sections of these comments that relate to his work regarding 

Devils Lake and Little Rock Lake and that those sections are a true and accurate representation 

of his work and findings. A copy of his certification is attached as Exhibit E. 

Building on the studies conducted by Horsley & Witten, Inc., this research project 

indicates that the major source of mercury to the lake and its watershed is atmospheric 
9

deposition. The research also indicates that the lake has high levels of methylmercury, which is 

the form of mercury that bioaccumulates in fish and is most toxic to humans and piscivorous 

wildlife. The lake’s waterborne methylmercury concentration ranges from 0.2 to 6.3 ng/1, with 

the highest concentrations occurring in the lake’s anoxic bottom water. Dr. Watras’ research on 

Devils Lake involves both mass balance studies and process oriented studies designed to 

elucidate the methylmercury cycle in the lake and watershed. 

The purpose of Dr. Watras’ mass balance studies is to quantify the sources and fates of 

inorganic mercury and methylmercury in the lake. Essentially, these studies involve the 

development of an annual balance sheet that accounts for the inputs and outputs of mercury to 

and from the lake while tracking changes in the mercury content of the lake over time. To 

facilitate this effort, Tribal EPA researchers are quantifying inputs of mercury to the lake, which 

include direct precipitation (wet atmospheric mercury deposition falling on the lake surface) and 

stream flows (indirect precipitation falling on the terrestrial watershed). The hydrology of 

Devils Lake is particularly well suited for a mass balance analysis because it is perched above 

the local groundwater system. Accordingly, the groundwater provides negligible amounts of 

water and mercury to the lake. Dr. Watras’ process-oriented studies include measurement of the 

rate of methylmercury production within the lake. They also involve identification of the 

mechanisms by which this process is occurring. 

The ongoing mass balance studies indicate that Devils Lake receives the vast majority of 

its mercury from atmospheric deposition in the lake, in part because of the pristine setting of the 

lake. It receives essentially no mercury from any point source other than the forest stream, and 

there is no significant geologic source of mercury in the watershed. The glacial till surrounding 

the lake is relatively thick, and there are no known deposits of cinnabar, the mineral form of 

mercury, within the till. This is generally the situation for lakes in the Wisconsin Northwoods. 

Dr. Watras’ work also shows that atmospherically-deposited mercury is converted to 

methylmercury in the hypolimnion of Devils Lake. During the summer of 2002, roughly 

0.5 grams of methylmercury were produced in the lake’s deep anoxic water. This amount of 

methylmercury would be sufficient to contaminate 900 pounds of fish to levels above the Federal 

health advisory limit (1 ppm Hg) if it was all bioaccumulated. 

There are several reasons why inorganic mercury may be converted to methylmercury at 

high rates in Devils Lake. First, the lake is closely connected to a wetland that serves as an 

additional conduit for atmospherically-deposited mercury as well as dissolved sulfate and 

organic carbon. Since dissolved sulfate and organic carbon are essential nutrients for the 

bacteria that produces methylmercury in the lake, contributions from the wetland may fuel 

additional mercury methylation. The dissolved carbon also imparts a dark tea-stained color to 

the lake water which blocks sunlight and retards the photodestruction of methylmercury. In 

clear-water systems, methylmercury is often destroyed relatively quickly in reactions with 

sunlight. 

Research on Devils Lake and elsewhere indicates that acid rain is an important secondary 

factor that may increase the production of methylmercury. This is because acid rain also adds 

sulfate directly to the lake. Because of the elevated levels of sulfate in Devils Lake due to acid 
10

rain, sulfate-reducing bacteria may have also increased the production of methylmercury in the 

lake. 

Work by Dr. Watras’ colleagues will include looking at the microbial community in 

Devils Lake in more detail and using DNA fingerprinting to determine which particular bacteria 

are causing the production of methylmercury. They will also be looking at other factors that 

affect the rate at which methylmercury is produced and destroyed. 

(b) FCPC’s testing of fish in Devils Lake for mercury. In addition to the Tribe’s testing 

and evaluation of the mercury cycle in Devils Lake and its surrounding watershed, FCPC has 

tested the lake’s fish for their mercury content. This testing has focused on yellow perch 

(Perca flavescens) because of their abundance in the lake and their importance as a food source 

for larger gamefish, like largemouth bass, and for wildlife, like wading birds and small 

mammals. The testing shows that perch in Devils Lake have relatively high concentrations of 

mercury when compared to other lakes in northern Wisconsin. This result is consistent with the 

high concentrations of methylmercury observed in the lake water. Testing results are attached as 

Exhibit F. 

Because Devils Lake is now and traditionally has been an important fishing site for tribal 

members, in the past, the Tribe had a fish stocking program for the lake. However, because of 

the high levels of mercury found in the lake and its fish, the Tribe unfortunately determined that 

it was appropriate to discontinue this stocking program. 

E. Tribal members face substantially increased health risks because of their higher 

consumption of fish and because of the significant mercury impacts to Devils Lake and other 

water bodies near the FCPC Reservation. Because of the Tribe’s heavy reliance on fish for both 

subsistence and cultural activities, its members are especially vulnerable to the impacts of 

mercury. As EPA notes in this proposed rule-making, “[s]ome populations in the U.S., such as: 

Native Americans. . . may rely on fish as a primary source of nutrition and/or for cultural 

practices. Therefore, they consume larger amounts of fish than the general population and may 

be at a greater risk to the adverse health effects from Hg due to increased exposure.” 69 Fed. 

Reg. 4709. 

EPA’s studies and documents show the heightened exposure of Native Americans to 

mercury-contaminated health impacts because of their high consumption of fish compared to the 

general population. For example, EPA recently revised its standard assumptions and now uses 

default values for fish consumption of 142.4 grams/day for subsistence population, such as 

Native American communities, more than eight times the 17.5 grams/day that EPA uses for the 

general population. Methodology for Deriving Water Quality Criteria for the Protection of 

Human Health, (US EPA, 2000), p. 4-273

However, these revised values may still underestimate Native American fish 

consumption and the health impacts from that consumption. See e.g., Fish Consumption and 

Environmental Justice: A Report Developed from the National Environmental Justice Advisory 

 

3

 This document is available at http://www.epa.gov/waterscience/humanhealth/method/method.html. 
11

Committee Meeting of December 3-6, 2001 (2002 revised), 14-15 (noting that while these 

revised numbers are a marked improvement over EPA’s previous assumptions, “they are still a 

source of concern for those groups whose members consume at the highest levels. The result is 

that when fish is contaminated, those consuming at the higher rate will be exposed to greater 

quantities of contamination that are present in the fish tissue”). This concern is especially true 

with respect to methylmercury, since the human intake of methylmercury from fish consumption 

is directly related to the level of consumption, as well as the level of methylmercury 

contamination in the fish. See Gilkinson, Miriam, Sample Calculation of Mercury in Support of 

HWC Background Document, 12 (providing equation showing that methylmercury intake from 

fish is directly related to the consumption rate of fish and the concentration of methylmercury in 

the fish consumed) (July 20, 1999), attached as Exhibit G. 

FCPC members may be even more exposed to mercury than Native Americans in 

general. FCPC’s Reservation is located in Wisconsin’s Northwoods, an area well known for its 

numerous lakes and streams, which are rich in fish resources. FCPC Tribal members regularly 

fish from Devils Lake and other water bodies in the Forest County area, many of which have 

been found to contain highly elevated levels of mercury. As discussed above, Devils Lake and 

its fish have been found to contain elevated levels of mercury. In addition, surrounding lakes 

used by FCPC tribal members such as Deep Hole Lake, which is adjacent to FCPC Tribal 

property, and Little Sand Lake, which is within a couple hundred yards of Tribal lands, have 

been identified as having special mercury concerns. See Exhibit A, WDNR Mercury Advisories 

Update. 

In addition to the increased risks FCPC Tribal members face from their high consumption 

of fish from impacted lakes, as heavy consumers of natural resources in general, the Potawatomi 

risk factor from exposure to environmental pollutants is further heightened. Because FCPC’s 

members consume substantially higher levels of fish than the general public and because 

Devils Lake and other lakes and water bodies on and around FCPC’s lands are significantly 

contaminated from mercury deposition, FCPC faces substantially increased risks of health and 

learning disability effects from mercury. Likewise, FCPC faces heightened natural resource 

damages from impacts to waters and fish on and near its Reservation. 

F. Unique cultural impacts because of limitations on ability to engage fully in 

subsistence and cultural activities. As was discussed in Section III.C above, FCPC’s members 

have a strong connection to the natural world. This is manifested in cultural activities that range 

from hunting and fishing, to gathering of resources for medicines, crafts, and other cultural 

purposes. Performing these activities is necessary in order for the Tribe’s people to attempt to 

maintain harmony in the natural world. Many of these activities depend upon having pure 

resources, such as water or plants that have not been altered (and are collected in the proper 

manner and from the correct location). 

The mercury contamination discussed above threatens more than the physical health of 

FCPC’s members: It also threatens the Tribe’s spiritual well being. The contamination of Tribal 

waters, such as Devils Lake, and the entry of mercury into the food chain and into plant tissues 

renders the use of these resources for cultural purposes problematic. The Tribe is left with a 
12

Hobson’s choice of ingesting materials that may ultimately injure Tribal members’ health, or 

foregoing cultural practices that are essential to their spiritual well being. 

This is a dilemma that the general public – even those who hunt and fish and use natural 

resources for food and craft purposes – does not face because these resources do not have the 

enormous cultural value they do for Tribal members. In this sense, the impacts of mercury 

contamination pose a unique threat to Native American populations such as FCPC. 

After decades of losing the lands and resources FCPC ancestors used in their subsistence 

way of life, mercury contamination threatens perhaps FCPC’s most important remaining 

resource: its clean water. The cultural damage that accompanies poisoning the Tribe’s water 

and the fish and other animals and plants that depend on and use that water is incalculable. It is 

critical that EPA fully understand FCPC’s and other tribes’ cultures and their use of fish and 

other wildlife resources to properly assess and address the environmental and human health 

hazards that they face from mercury contamination. Otherwise, as discussed in greater detail 

below, EPA will not be able to meet its obligations to act as a fiduciary to protect the Tribe’s 

interests from permitted mercury emissions, and to assess and address the disproportionately 

high and adverse impacts that tribes face from mercury deposition and to ensure that tribes enjoy 

the same degree of protection from environmental and health hazards as other Americans. 

IV Special Status of FCPC in making comments. 

A. EPA’s trust responsibility and obligations under Environmental Justice Doctrine with 

respect to tribe’s impacted trust assets. Under the federal trust responsibility, established by the 

Supreme Court in the 1830s in the historic Cherokee cases, the federal government is obligated 

to protect Indian tribes’ lands, waters, natural resources and rights of self-government as a trustee 

would protect the interests of a beneficiary. This obligation is heightened by the Environmental 

Justice Doctrine. Pursuant to Executive Order 12,898, the federal government has bound itself to 

ensuring the fair treatment of all minority communities, including Indian tribes. 

In this rulemaking, these obligations require EPA to consult with FCPC and other 

affected tribes to determine how the proposed rule could have heightened or unique impacts on 

Indian tribes. As discussed above, mercury contamination creates significant heightened and 

unique impacts to the Tribe and its members because of FCPC’s heavy reliance on pure water, 

fish, and other natural resources for its culture and way of life and the significant mercury 

contamination to water bodies on and near the Tribe’s reservation and other lands. In addition, 

after EPA has determined the unique impacts to Indian tribes, EPA must make sure that its rulemaking properly protects the Tribes’ rights and resources, including their way of life and 

resources. Likewise, EPA must identify and address disproportionately high human health and 

environmental effects to all tribes, so that EPA ensures that all people enjoy the same degree of 

protection from environmental and health hazards. 
13

1. EPA’s trust responsibility to FCPC and other tribes. 

(a) EPA’s recognition of its trust responsibility to tribes. In 2001 the EPA reaffirmed its 

Indian Policy.4

 First adopted in 1984, the Policy mandates that EPA “recognize[] that a trust 

responsibility derives from the historical relationship between the Federal Government and 

Indian Tribes as expressed in certain treaties and Federal Indian law.” The Policy continues: “In 

keeping with that trust responsibility, the Agency will endeavor to protect the environmental 

interests of Indian Tribes when carrying out its responsibilities that may affect the reservations.” 

The Policy also confirms that the EPA will stand ready to “work directly with Indian 

tribal governments on a one-to-one basis (the ‘government-to-government’ relationship), rather 

than as subdivisions of other governments.” Finally, in circumstances where EPA has not 

transferred regulatory and program management responsibilities to tribes (though the Policy 

expresses a preference for such transfers), the Policy requires that EPA “encourage [tribes] to 

participate in policy-making” and other appropriate roles in the management of reservation 

programs. 

In reaffirming this Policy, the EPA Administrator concluded: 

The United States has a unique legal relationship with Tribal Governments based 

on the Constitution, treaties, statutes, Executive Orders, and court decisions. This 

relationship includes a recognition of the right of tribes as sovereign governments 

to self-determination, and an acknowledgment of the Federal government’s trust 

responsibility to the Tribes. 

Accordingly, it is critical that EPA work closely with FCPC and other impacted tribes to 

ensure that EPA’s trust responsibility is met in addressing the significant impacts associated with 

mercury contamination. 

(b) EPA’s general obligation under trust responsibility to act in accordance with highest 

fiduciary standards for benefit of tribes. The commitment embodied by EPA’s Indian Policy and 

its reaffirmation of that policy is consistent with the Agency’s obligations under settled law 

regarding the trust responsibility of the United States to Indian tribes. The trust responsibility is 

based on the unique history of the federal-tribal relationship, and the course of dealings between 

Indian tribes and the United States. The origin of the trust responsibility in federal law is found 

in the Supreme Court’s historic decisions in the Cherokee cases. Cherokee Nation v. Georgia, 

30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). The Cherokee

cases establish that the trust responsibility is an independent legal doctrine, a conclusion which is 

confirmed by nearly two centuries of Supreme Court jurisprudence.5

 In carrying out their 

 

4

 The memorandum reaffirming the EPA Indian Policy (with the policy attached) can be found at 

http://www.epa.gov/indian/pdfs/reaffirmindpol01.pdf. 

5 E.g., Fellows v. Blacksmith, 60 U.S. (19 How.) 366 (1856); United States v. Kagama, 118 U.S. 375 

(1886); Choctaw Nation v. United States, 119 U.S. 1 (1886); Cherokee Nation v. Southern Kansas R. Co., 

135 U.S. 641, 654-55 (1890); Cherokee Nation v. Hitchcock, 187 U.S. 294, 300-05 (1902); Lone Wolf v. 

Hitchcock, 187 U.S. 553 (1903); Tiger v. Western Investment Co., 221 U.S. 286 (1911); Heckman v. 
14

obligations imposed by treaties, statutes, regulations and executive orders, executive officials of 

the United States are bound by the trust responsibility. In discharging the trust responsibility, 

executive officials of the United States must observe “obligations of the highest responsibility 

and trust” and “the most exacting fiduciary standards,” Seminole Nation v. United States, 

316 U.S. 286, 296-97 (1942). Moreover, EPA is bound “by every moral and equitable 

consideration to discharge its trust with good faith and fairness.” United States v. Payne, 

264 U.S. 446, 448 (1924). As the District Court held in Northwest Sea Farms v. United States 

Army Corps of Engineers, 931 F. Supp. 1515, 1520 (W.D. Wash. 1996), applying these 

principles, the Corps has a fiduciary duty to “ensure that Indian treaty rights are given full 

effect.” 

The trust responsibility also includes a duty to consult with Indian tribes concerning 

federal actions that may affect their interests. As the Court explained in Klamath Tribes v. 

United States Forest Service, 1996 WL 924509 (D. Or. 1996), “[i]n practical terms, a procedural 

duty has arisen from the trust relationship such that the federal government must consult with an 

Indian Tribe in the decision-making process to avoid adverse effects on treaty resources.” Id. at 

8. These principles are well settled. E.g., Morton v. Ruiz, 415 U.S. 199 (1974) (denial of 

general assistance benefits to Indians living near the reservation held to be “inconsistent with 

‘the distinctive obligation of trust incumbent upon the Government in its dealings with these 

dependent and sometimes exploited people.’” Id. at 236 (quoting Seminole Nation v. 

United States, 316 U.S. 286, 296 (1942)); HRI, Inc. v. EPA, 198 F.3d 1224, 1245 (10th Cir. 

2000) (“in some contexts the fiduciary obligations of the United States mandate that special 

regard be given to the procedural rights of Indians by federal administrative agencies”) (quoting 

Felix S. Cohen’s Handbook of Federal Indian Law 225 (1982)); Midwater Trawlers Cooperative 

v. U.S. Dep’t of Commerce, 139 F. Supp. 2d 1136, 1145-46 (W.D. Wash. 2000) (consultation 

grounded in the trust relationship) aff’d in part and rev’d in part, 282 F.3d 710 (9th Cir. 2002). 

Settled law confirms that federal agencies must strictly adhere to the ordinary duties of a 

private fiduciary when their actions impact Indian rights. Covelo Indian Community v. FERC, 

895 F. 2d 581, 586 (9th Cir. 1990) (“the same trust principles that govern private fiduciaries 

determine the scope of FERC’s obligations to the [Indian] Community”); accord Assiniboine and 

Sioux Tribes of the Fort Peck Indian Reservation v. Board of Oil and Gas Conservation, 792 

F.2d 782, 794 (9th Cir. 1986) (applying “the same trust principles that govern the conduct of 

private fiduciaries” to Department’s authority over mineral royalties); Coast Indian Community 

 

United States, 224 U.S. 413 (1912); Choate v. Trapp, 224 U.S. 665, 675 (1912); United States v. 

Sandoval, 231 U.S. 28, 45-46 (1913); United States v. Pelican, 232 U.S. 442 (1914); United States v. 

Nice, 241 U.S. 591 (1916); Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919); United States v. Payne, 

264 U.S. 446 (1924); United States v. Candelaria, 271 U.S. 432 (1926); United States v. Creek Nation, 

295 U.S. 103 (1935); Shoshone Tribe of Indians v. United States, 299 U.S. 476 (1937); United States v. 

Santa Fe Pac. R. Co., 314 U.S. 339 (1941); Tulee v. State of Washington, 315 U.S. 681 (1942); Seminole 

Nation v. United States, 316 U.S. 286, 296-97 (1942); United States v. Alcea Band of Tillamooks, 329 

U.S. 40, 47 (1946); United States v. Mason, 412 U.S. 391 (1973); Morton v. Ruiz, 415 U.S. 199, 236 

(1974); Morton v. Mancari, 417 U.S. 535, 552-55 (1974); United States v. Sioux Nation, 448 U.S. 371, 

408 (1980); Nevada v. United States, 463 U.S. 110, 142 (1983); County of Oneida v. Oneida Indian 

Nation, 470 U.S. 226, 247 (1985).
15

v. United States, 213 Ct. Cl. 129, 550 F.2d 639 (1977); Cheyenne-Arapahoe Tribes v. United 

States, 206 Ct. Cl. 340, 512 F.2d 1390 (1975); Menominee Tribe v. United States, 101 Ct. Cl. 10, 

18-19 (1944); Navajo Tribe v. United States, 364 F.2d 320, 322-24 (Ct. Cl. 1966). Thus, EPA 

must strictly adhere to its duties as a fiduciary to ensure proper protection of FCPC’s and other 

impacted tribes’ rights and resources from mercury contamination. 

(c) EPA’s specific obligations to protect tribes’ rights and resources, including their way 

of life and cultural resources. Applying this standard, the courts have restricted federal agencies’ 

ability to permit actions which would interfere with Indian tribes’ treaty rights. See, e.g., 

Northwest Sea Farms, Inc. v. Army Corps of Engineers, 931 F. Supp. 1515, 1520-22 (W.D. 

Wash. 1996); Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504, 1510-16 (W.D. Wash. 

1988). As the Court held in Northwest Sea Farms, the trust responsibility is not limited to the 

protection of treaty rights, reservation lands, and other property held in trust for the tribes. 

Rather, the trust responsibility applies to all actions of the federal government that may affect 

Indian tribes, 931 F. Supp. at 1520, and extends to all rights, resources and interests of Indian 

tribes which are recognized by treaty, statute, executive order or the common law. Simply 

stated, as trustee for the tribes, the United States “has a responsibility to protect their rights and 

resources.” Klamath Water Users Protective Association v. Patterson, 204 F.3d 1206, 1213 

(9th Cir. 2000). 

These rights include tribal rights to the lands, waters and natural environment of the 

reservation. Winters v. United States, 207 U.S. 564 (1908); Arizona v. California, 373 U.S. 546 

(1963) (water rights are reserved despite silence in treaties, statutes and executive orders creating 

reservations); United States v Shoshone Tribe, 304 U.S. 111 (1938) (same for minerals and 

timber). Tribes are entitled to sufficient water and other resources “to make the reservation 

livable,” Arizona, 373 U.S. at 599, and “to maintain . . . their way of life.” Indian tribes also 

hold rights to hunt, fish, and gather on Reservation lands and waters. Menominee Tribe v. 

United States, 391 U.S. 404, 406 (1968) (natural resource harvesting rights held on reservation 

whether mentioned in the enactment creating the reservation or not); see also Arizona, 373 U.S. 

at 598-99, concluding Indians are entitled to sufficient “water necessary to sustain life” on their 

reservations and observing that “water from the [Colorado River] would be essential to the life of 

the Indian people and to the animals they hunted and the crops they raised.” 

The trust responsibility also applies to tribal cultural resources. Indeed, Congress has 

specifically recognized the applicability of the trust responsibility in this area: numerous federal 

laws protect tribal historic and cultural resources. See National Historic Preservation Act, 

16 U.S.C. §§ 470-470x-6; Archeological Resources Protection Act, 16 U.S.C. §§ 470aa-470mm; 

Antiquities Act of 1906, 16 U.S.C. §§ 431-433; Exec. Order No. 13,007, 61 Fed. Reg. 26,771 

(May 24, 1996); Exec. Order No. 11,593, reprinted in 16 U.S.C. § 470 note. In addition, the 

American Indian Religious Freedom Act, 42 U.S.C. §§ 1996, 1996a, recognizes and protects the 

tribes’ right to practice traditional religions pursuant to the First Amendment to the United States 

Constitution. See also Religious Freedom Restoration Act, 42 U.S.C. § 2000bb; Religious Land 

Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc. Thus, it is critical that EPA act to 

ensure that the water resources and especially the cultural resources (e.g., Devils Lake) of FCPC 

and other impacted tribes are fully protected in accordance with EPA’s fiduciary obligations 

from mercury-related impacts. 
16

2. EPA’s responsibility under the Environmental Justice Doctrine. 

(a) General obligation under Environmental Justice Doctrine to identify and address 

disproportionately high human health and environmental effects. Executive Order 12,898 

established the Environmental Justice Doctrine, amid growing concern that minority populations, 

low-income populations, and Indian tribes bear a disproportionate amount of adverse health and 

environmental effects. Executive Order 12,898, Federal Actions to Address Environmental 

Justice in Minority Populations and Low-Income Populations, 59 Fed. Reg. 7629 (1994), 

(E.O. 12898), mandates that: 

[E]ach federal agency shall make achieving environmental justice part of its mission by 

identifying and addressing, as appropriate, disproportionately high and adverse human 

health or environmental effects of its programs, policies, and activities on minority 

populations and low-income populations. 

E.O. 12,898 (Section 1-101) (emphasis added). E.O. 12,898 expressly confirms that its 

provisions apply to federal programs, policies and activities involving Native Americans. 

59 Fed. Reg. at 7632. Similarly, guidance released by the Council on Environmental Quality 

expressly incorporates Indian tribes into the definition of low-income populations and minority 

populations. See Environmental Justice: Guidance Under the National Environmental Policy 

Act, December 10, 1997. Accordingly, EPA must ensure that it identifies and addresses the 

disproportionately high and adverse impacts of mercury deposition to FCPC and other affected 

tribes. 

(b) The Administration’s endorsement of the Environmental Justice Doctrine and its 

commitment to ensure all people the same degree of protection from environmental and health 

hazards. On August 9, 2001 the current administration confirmed its commitment to 

environmental justice and endorsed E.O. 12,898. In a memorandum (2001 Memo)6 sent to the 

leadership of the agency, the EPA Administrator stated: 

The Environmental Protection Agency has a firm commitment to the issue of 

environmental justice and its integration into all programs, policies, and activities, 

consistent with existing environmental laws and their implementing regulations. 

The Agency defines environmental justice to mean the fair treatment of people of all 

races, cultures, and incomes with respect to the development, implementation, and 

enforcement of environmental laws and policies, and their meaningful involvement in the 

decision making processes of the government. 

2001 Memo at 1 (emphasis in original). 

The memorandum specifies that this commitment to environmental justice includes, 

“[c]onducting our programs, policies, and activities that substantially affect human health and the 

 

6 This document can be found at: http://www.epa.gov/compliance/resources/ 

policies/ej/admin_ej_commit_letter_081401.pdf.
17

environment in a manner that ensures the fair treatment of all people, including minority 

populations and/or low-income populations; . . . [e]nsuring greater public participation in the 

Agency’s development and implementation of environmental regulations and policies; and 

[i]mproving research and data collection for Agency programs relating to the health of, and the 

environment of all people, including minority populations and/or low-income populations.” Id. 

(emphasis added). 

The memorandum concludes: 

In sum, environmental justice is the goal to be achieved for all communities and 

persons across this Nation. Environmental justice is achieved when everyone, 

regardless of race, culture, or income, enjoys the same degree of protection from 

environmental and health hazards and equal access to the decision-making 

process to have a healthy environment in which to live, learn, and work. 

2001 Memo at 2. To ensure that everyone, regardless of race or culture, enjoys the same degree 

of protection from environmental and health hazards associated with mercury deposition, it is 

critical that EPA develop appropriately stringent mercury standards that are implemented in the 

near future, so that citizens, such as FCPC’s members that rely heavily on fish consumption for 

cultural and other reasons, do not face disproportionately high environmental and health hazards 

from mercury contamination. 

(c) Need for EPA to understand tribal culture and natural resource use to properly assess 

and address disproportionately high and adverse impacts of mercury deposition on tribes and to 

ensure tribes same degree of protection from environmental and health hazards. E.O. 12,898 and 

the Environmental Justice Doctrine have direct relevance to the promulgation of environmental 

regulations that could affect Indian tribes -- as the 2001 Memo explicitly recognizes. What may 

be less apparent is how disproportionately high and adverse human health or environmental 

effects on tribal individuals and/or communities can be properly assessed. In fact, such 

individuals and communities often experience environmental and other impacts differently from 

both the general population and from other minority populations. As Professor Dean Suagee 

explains: 

[I]f you look closely you are bound to find impacts that affect tribal people 

differently from the way they affect other groups. Any activity that affects the 

environment has the potential to cause impacts on a tribal community that are 

different from the impacts suffered by other communities because of the ways in 

which the natural world is important to tribes for cultural and religious reasons. 

[This] kind of disproportionate impact reflects a basic difference between tribes 

and other minority groups in this country. This distinction applies both within 

and beyond reservation boundaries. . . . Some tribes, and some people within any 

given tribe, are more dependent than others on traditional cultural practices for 

their basic survival needs. Traditional religions have more practitioners in some 

tribes than in others. But for all American Indian and Alaska Native people, 

traditional cultural and religious practices are an important aspect of tribal 
18

identity. Impacts on culturally important biological communities or sacred places 

are bound to affect tribal communities differently. 

Suagee, Dean B. Dimensions of Environmental Justice in Indian Country and Native Alaska, 7 

(2002) (Second National People of Color Environmental Leadership Summit Resource Paper 

Series). 

Thus, in order to assure that – in the words of the 2001 Memo – “everyone, regardless of 

race, culture, or income, enjoys the same degree of protection from environmental and health 

hazards,” the EPA must undertake the study necessary to properly understand tribal culture and 

use of resources of FCPC and other impacted tribes and then carefully assess how this 

rulemaking (including its failure to adequately limit mercury emissions) will affect those uses 

and resources. 

3. Duty of EPA to consult with tribe, and tribe’s request for consultation meeting to 

discuss mercury impacts and tribe’s comments. EPA has a duty to consult with the potentially 

affected tribes in considering the impact of the proposed rule on their rights, resources and 

interests. This is an important part of the trust responsibility. Because of this duty, FCPC asks 

that EPA carefully consider these comments and meet with us to consult regarding our concerns. 

Such consultation is specifically required by Executive Order 13,175, entitled 

Consultation and Coordination with Indian Tribal Governments. 65 Fed. Reg. 67249 (2000). 

Executive Order 13,175 was recently reaffirmed by the Bush Administration. See letter to the 

Honorable Frank Pallone, Jr. from Alberto R. Gonzales, Counsel to the President, dated 

June 19, 2002. Executive Order 13,175 also requires that “[e]ach agency shall have an effective 

process to permit . . . Indian tribal governments to provide meaningful and timely input in the 

development of regulatory policies on matters that significantly or uniquely affect their 

communities.” 65 Fed. Reg. at 27655 (Section 3). Indeed, as outlined above, EPA has an Indian 

Policy that requires the Agency to “encourage [tribes] to participate in policy-making” and other 

appropriate roles in the management of reservation programs.7

Executive Order 13,175 and EPA’s Indian Policy recognize that the trust responsibility 

includes the duty to consult with tribes and Indians to ensure their understanding of federal 

actions that may affect their rights and to ensure federal consideration of their concerns and 

objections with regard to such actions. 

Accordingly, in fulfillment of its trust duties, the EPA is required to engage in 

meaningful consultation with the potentially affected tribes concerning the impacts of the 

proposed rule. Such consultation is also essential as a practical matter. The tribes are a primary 

source of knowledge and information regarding the lands, waters, natural resources, and historic 

 

7

 Note also, as outlined in Section IV.A.2.b above, that EPA recently reaffirmed that the 

environmental justice doctrine requires that the Agency ensure the “meaningful involvement in the 

decision making processes of the government” for environmental justice communities – which includes 

Indian tribes. 
19

and cultural resources in the area that may be impacted by the proposed rule. Indeed, because 

the protection of historic and cultural resources often depends on maintaining the confidentiality 

of information about such resources, the tribes and their members are likely to be the only source 

of certain information. Consultation with the tribes is essential if the EPA is to consider and 

evaluate potential impacts to tribal rights, resources and interests from the proposed rule and 

fulfill its trust obligations. 

In these comments, FCPC is presenting the substantial concerns of its members regarding 

the proposed rule. To date, except for holding a regional hearing open to any participant, EPA 

has taken no steps to specifically consult with FCPC or any other tribes (to our knowledge). 

Under Executive Order 13,175 and EPA’s Indian Policy, the FCPC asks that EPA meet with it to 

discuss these comments. 

B. FCPC’s special expertise regarding mercury and mercury-related impacts to the tribe 

and its members. Over the past decade, with its study of the effects of mercury deposition and 

cycling in Devils Lake, FCPC has developed significant expertise regarding mercury-related 

issues. As discussed above, FCPC Tribal EPA, in conjunction with Dr. Carl Watras, has 

developed significant information regarding the mercury and methylmercury levels in 

Devils Lake and its surrounding waters, as well as data regarding the mercury content in fish 

found in the lake. As indicated above, Dr. Watras has executed a certification that he 

participated in the drafting of the sections of these comments that relate to his work regarding 

Devils Lake and Little Rock Lake and that those sections are a true and accurate representation 

of his work and findings. 

In addition, the Tribe has substantial expertise regarding available mercury control 

technology for coal-fired power plants. In particular, FCPC has retained the services of 

Dr. Phyllis Fox, an expert in pollution control technology for power plants, and in particular, 

mercury control technology. A copy of Dr. Fox’s curriculum vitae is attached as Exhibit H. A 

copy of Dr. Fox’s expert comments on available mercury pollution control technology is 

attached as Exhibit I. Because this report contains detailed information regarding available 

mercury control technology, as well as numerous attachments that discuss the technology, FCPC 

requests that EPA carefully review Dr. Fox’s report and its attachments. 

Moreover, the Tribe has retained Mr. Ted Johnson, an expert in health risk assessment 

and statistical analysis to evaluate both the increased exposure of FCPC tribal members to 

mercury contamination and EPA’s proposed methodology for developing its MACT floor. A 

copy of Mr. Johnson’s curriculum vitae is attached as Exhibit J. A copy of Mr. Johnson’s 

analysis of EPA’s proposed MACT floor is attached as Exhibit K. Because of the importance of 

this analysis in developing appropriate and legally defensible mercury emission limits, FCPC 

requests that EPA carefully review Mr. Johnson’s analysis. 

Finally, the Tribe has clear expertise regarding its culture and way of life, as well as the 

impacts that mercury contamination has on its traditional activities. In addition to the vast 

knowledge of the Tribe’s members and leadership with respect to its cultural activities and 

potential impacts to those activities, these comments reflect the input of Dr. Charles Cleland, an 

expert in tribal culture. A copy of Dr. Cleland’s curriculum vitae is attached as Exhibit L. 
20

Dr. Cleland has executed a certification that he participated in the drafting of the sections of 

these comments that relate to his area of expertise and the impact of mercury deposition on 

cultural resources and that those sections are a true and accurate representation of his work and 

findings. A copy of his Dr. Cleland’s certification is attached as Exhibit M. 

Accordingly, in order to meet its obligations under the trust responsibility as well as the 

Environmental Justice Doctrine, it is critical that EPA work closely and consult with the tribe to 

make sure that EPA’s rule-making adequately and fully addresses mercury-related health, 

environmental, and cultural impacts to the Tribe. 

V Utility coal plants are the key cause of mercury impacts in U.S. waters. 

Utility units make up the largest domestic anthropogenic source of mercury emissions. In 

addition, EPA has found a plausible link between methylmercury concentrations in fish and 

mercury emissions from coal-fired power plants. Finally, studies have shown that reduction in 

mercury deposition results in substantial reductions in methylmercury in surface waters and fish. 

Accordingly, FCPC believes that it is critical that EPA take appropriate and significant action to 

fully and properly regulate emission of mercury from power plants. 

A. Utility Units make up largest domestic anthropogenic source of mercury 

emissions. EPA estimates that approximately 60 percent of the total mercury deposited in the 

United States comes from U.S. anthropogenic air emission sources, and that the percentage is 

estimated to be even higher in some regions. See Regulatory Finding on the Emissions of 

Hazardous Air Pollutants From Electric Utility Steam Generating Units, Notice of Regulatory 

Finding, 65 Fed. Reg. 79825, 79827 (Dec. 20, 2000) (“2000 Regulatory Finding”). As 

recognized by EPA, utility units are the largest domestic source of such mercury emissions. 69 

Fed. Reg. 4659. Accordingly, coal-fired utility units are the key source of mercury emissions 

that must be significantly reduced to address the serious health-related and other costs associated 

with mercury. See 65 Fed. Reg. 79827 (“the available information indicates that mercury 

emissions from electric utility steam generating units comprise a substantial portion of the 

environmental loadings and are a threat to public health and the environment.”). 

B. EPA’s finding of “plausible link” between utilities and mercury in fish. EPA has 

not quantified how much of the methylmercury in fish is due to utility units relative to other 

sources, but concluded that it was not necessary to do so for the purpose of its finding that 

regulation of utility units is appropriate and necessary. See 65 Fed Reg. 79827. In fact, in its 

2000 Regulatory Finding, EPA specifically concluded that “there is a plausible link between 

methylmercury concentrations in fish and mercury emissions from coal-fired electric utility 

steam generating units.” Id. at 79830. 

C. Florida DEP and other findings that removal of mercury emissions results in 

direct, substantial, and timely reductions of mercury in fish and wildlife. It is critical to note that 

studies have shown that reductions in mercury emissions from utility units and other industrial 

sources would have an immediate beneficial effect. For example, according to the 

Florida Department of Environmental Protection, “over a single generation, mercury 

concentrations found in fish and wading birds in America’s Everglades have dropped by 60-70 
21

percent. The drastic reductions are directly linked to the installation of technology that reduced 

mercury in emissions in industries in south Florida by 100 fold in the last two decades. . . . 

significant reductions in concentrations lead the Department of Health to downgrade fish 

consumption advisories in central and northern areas of the Everglades this year (2003).” 

http://www.dep.state.fl.us/evergladesforever/news/2003/110603.htm (February 23, 2004). 

Likewise, Dr. Watras’ studies have found that when the mercury content in rain declines, 

so does the mercury and methylmercury content in the water and fish of impacted lakes. In 

particular, his five-year study of Little Rock Lake indicates that reductions in atmospheric 

mercury deposition of 10 percent per year resulted in reductions of roughly 5 percent per year for 

mercury in lake water and fish. Unfortunately, more recent information regarding the 

Little Rock Lake area indicates that mercury deposition may be rising again. Thus, not only is 

there a real need to address mercury deposition in the United States, but extant data indicate that 

substantial benefits may occur relatively quickly when mercury deposition is significantly 

reduced. 

VI MACT regulation under Section 112 of CAA is legally required. 

A. EPA’s regulatory finding that regulation of utility units under Section 112 is 

appropriate and necessary cannot be reversed. In its 2000 Regulatory Finding, EPA determined 

that regulation of Utility Units under Section 112 is “appropriate and necessary.” See 65 Fed. 

Reg. 79826. Although the Clean Air Act (“CAA”) provides a procedure whereby regulation 

under Section 112 may be avoided if EPA demonstrates that emissions do not represent a threat 

to public health or the environment, EPA clearly cannot make such a showing for mercury 

emissions from Utility Units. Accordingly, EPA’s 2000 Regulatory Finding cannot be reversed, 

and it must regulate mercury emissions from Utility Units under Section 112 of the Clean Air 

Act. 

1. EPA’s 2000 Regulatory Finding that regulation of coal and oil-fired utility units is 

appropriate and necessary. The Clean Air Act required EPA to “perform a study of the hazards 

to public health reasonably anticipated to occur as a result of emissions by electric utility steam 

generating units of [hazardous air] pollutants. . . .” 42 U.S.C. §112(n)(1)(A). After conducting 

the study required by section 112(n)(1)(A), EPA determined that “regulation of HAP emissions 

from coal- and oil-fired electric utility steam generating units under section 112 of the CAA is 

appropriate and necessary.” 65 Fed. Reg. 79826. Accordingly, EPA added “coal- and oil-fired 

electric utility steam generating units to the list of source categories under section 112(c) of the 

CAA.” Id. Since EPA has found regulation of coal- and oil-fired electric utility steam 

generating units under Section 112 to be appropriate and necessary, it must regulate HAP 

emissions from these sources under Section 112. 42 U.S.C. §112(n)(1)(A) (“The Administrator 

shall regulate electric utility steam generating units under this section [112], if the Administrator 

finds such regulation is appropriate and necessary after considering the results of the study 

required by this subparagraph” (emphasis added)). 

2. Section 112(c) sets forth the standards for deleting a MACT source category. 

EPA now proposes to reverse its 2000 Regulatory Finding and proposes to “find that regulation 

of coal- and oil-fired Utility Units under section 112 is not ‘appropriate and necessary’ within the 
22

meaning of section 112(n)(1)(A). As a consequence, EPA also proposes to delete such units 

from the CAA section 112(c) list.” 69 Fed. Reg. 4683. 

The Clean Air Act sets forth clear standards for any deletion of a source category from 

the list under section 112(c). In particular, the Clean Air Act states: 

The Administrator may delete any source category from the list under this 

subsection, on petition of any person or on the Administrator’s own motion, 

whenever the Administrator makes the following determination or determinations, 

as applicable. . . In the case of hazardous air pollutants that may result in adverse 

health effects in humans other than cancer or adverse environmental effects, a 

determination that emissions from no source in the category or subcategory 

concerned. . . exceed a level which is adequate to protect public health with an 

ample margin of safety and no adverse environmental effect will result from 

emissions from any source. . . . 

42 U.S.C. §112(c)(9)(B) (emphasis added). 

Nowhere in EPA’s proposed rule has the Agency determined that mercury emissions 

from Utility Units will not “exceed a level which is adequate to protect public health with an 

ample margin of safety” or that “no adverse environmental effect will result from emissions 

from” Utility Units. Indeed, the Agency has failed to provide any facts in the record that would 

support such a determination. Accordingly, EPA has failed to meet the statutory requirement to 

delete Utility Units from the list of categories under Section 112(c). As a result, because Utility 

Units are a listed source category under Section 112, the Clean Air Act specifically requires the 

EPA to “establish emission standards under subsection (d)” of Section 112 for such listed 

Utility Units. See 42 U.S.C. §7412(c)(2) (“For the categories and subcategories the 

Administrator lists, the Administrator shall establish emission standards under subsection (d) of 

this section, according to the schedule in this subsection and subsection (e) of this section”). 

3. Because coal-fired utility units emit mercury at levels that do not adequately 

protect public health, EPA cannot delete these facilities as a MACT source category. As 

explained above, EPA has not made the statutorily mandated finding required to delete Utility 

Units from the list of sources subject to regulation under Section 112. See 42 U.S.C. 

§ 112(c)(9)(B). In fact, the Agency cannot make such a showing given its finding that “mercury 

emissions from electric utility steam generating units comprise a substantial portion of the 

environmental loadings and are a threat to public health and the environment.” 65 Fed. Reg. 

79827 (emphasis added). Indeed, even in its current proposed rule, EPA states that it “continues 

to believe that emissions of Hg from coal-fired Utility Units. . . pose hazards to public health. . .” 

69 Fed. Reg. 4683 (emphasis added). Accordingly, EPA is statutorily obligated to regulate 

mercury emissions from Utility Units under Section 112. 

B. EPA’s arguments in the pre-amble to the proposed rule to avoid MACT regulation 

lack merit. EPA attempts to sidestep the clear statutory procedure for delisting a source category 

set out in section 112(c)(9)(B) by claiming that “its initial decision to list coal- and oil-fired 

Utility Units under section 112(c) in December 2000 was without proper foundation.” 69 Fed. 
23

Reg. 4689. EPA apparently bases this claim on its belief that section 111 provides authority to 

regulate mercury emissions from Utility Units and that such authority will adequately address the 

public health hazards associated with mercury emissions. In particular, EPA makes the 

unsubstantiated claim “that the premise underlying its December 2000 ‘necessary’ finding, that 

no other authority exists under the CAA to adequately address the public health hazards 

associated with Hg and Ni emissions, lacks foundation.” Id.

As explained in greater detail below, EPA’s claim that its original decision to list utility 

units was improper because of its asserted authority to regulate them under section 111 fails for 

at least three reasons: (1) EPA misreads section 112(n)(1)(A)’s requirement to consider other 

requirements under the Clean Air Act as allowing a consideration of EPA’s overall authority to 

regulate even when no regulatory requirements exist; (2) EPA has not and cannot demonstrate 

that its proposed section 111 regulations will adequately address mercury health hazards; and (3) 

once a pollutant such as mercury is listed under section 112(b), section 111(d) prohibits EPA 

from establishing emission standards under Section 111 for any such source category. 

1. EPA’s assertion that MACT regulation is not required if there is other authority 

under the Clean Air Act to regulate mercury emissions is based on a mis-reading and misapplication of Section 112(n)(1)(A). In its attempt to avoid regulating utility units under section 

112, EPA argues that it based its 2000 Regulatory Finding that it is necessary to regulate 

mercury emissions “solely on its belief, at the time, that there were no other authorities under the 

CAA that would adequately address Hg and Ni emissions from coal- and oil-fired Utility Units.” 

69 Fed. Reg. 4684 (emphasis added). Among other things, EPA argues that Congress intended 

“that Utility Units be regulated under section 112 only if the other authorities of the CAA, once 

implemented, would not adequately address those HAP emissions from Utility Units that warrant 

regulation.” Id. (emphasis added). As support, EPA cites “the first sentence of section 

112(n)(1)(A), which requires EPA to conduct a study that focuses on the hazards to public health 

that would exist following implementation of the other authorities of the CAA.” Id. (emphasis 

added). Citing section 111 as the other authority under the CAA, EPA now “propose[s] to find 

that regulation of coal- and oil-fired Utility Units under section 112 is not necessary because 

CAA section 111 once implemented would adequately address the public health hazards posed 

by Utility Unit emissions of Hg and Ni.” Id. at 4684. 

However, EPA mis-reads the clear language of section 112(n)(1)(A) by replacing the 

word “requirements” with “authorities.” As EPA is aware, section 112(n)(1)(A) provides in part: 

The Administrator shall perform a study of the hazards to public health reasonably 

anticipated to occur as a result of emissions by electric utility steam generating units of 

pollutants listed under subsection (b) of this section after imposition of the requirements

of this chapter. 

(Emphasis added). Since at the time of the study, as well as now, there was a clear lack of any 

existing mercury-control requirement or in fact any requirement for EPA to develop future 

mercury-control regulations outside of section 112, the 1998 EPA study properly evaluated the 

hazards to public health reasonably anticipated to occur as a result of emissions from these units 

without assuming required control under the Act. Consistent with the plain language of 
24

section 112(n)(1)(A), EPA’s 2000 Regulatory Finding found that “[i]t is necessary to regulate 

HAP emissions. . . under section 112 of the CAA because the implementation of other 

requirements under the CAA will not adequately address the serious public health and 

environmental hazards arising from such emissions . . . and which section 112 is intended to 

address.” 65 Fed. Reg. 79820 (emphasis added). 

In its attempt to avoid the effects of its proper 2000 Regulatory Finding, EPA now strains 

to read section 112(n)(1)(A) to allow, and in fact require, consideration of EPA’s other potential 

regulatory “authorities” under the Act, even if no requirements have or even in the future must 

be issued under those authorities. Thus, in order to shoehorn section 111’s potential regulatory 

authority into section 112(n)(1)(A)’s clear statutory language, EPA is forced to interpret 

section 112(n)(1)(A) to require EPA’s utility unit study to evaluate only those impacts that 

remain, “after imposition of [potential future] requirements [that could be promulgated under 

any other authority] of this chapter.” EPA cites no basis for its expansion of 

section 112(n)(1)(A) to include not only existing requirements of the Act but also any future 

actions EPA may take under other authorities accorded to it under the Act. 

It is also important to note the context in which the “requirements of this chapter” is 

referenced in section 112(n)(1)(A). It is referenced with respect to EPA’s study of the public 

health hazards associated with electric utility steam generating units’ emissions, not to a later 

decision regarding whether to regulate those emissions under section 112. It is highly unlikely 

that Congress could have intended EPA to conduct a study of health effects that would occur 

only after the assumed imposition of then-unknown future potential but not required regulation. 

Indeed, if that were true and EPA were correct in its assertion that regulation of mercury 

emissions from generating units is authorized under section 111, EPA’s strained and expansive 

interpretation of “requirements” would require EPA’s study to have assumed that regulation 

under section 111 could/would address any mercury emissions, making EPA’s study 

meaningless. It is difficult to imagine that Congress would require EPA to conduct such a 

fruitless exercise. 

Accordingly, because there were and are no other statutory requirements currently in 

place to address mercury emissions from Utility Units, EPA’s 1998 study correctly considered 

the health hazards that would occur after imposition of other statutory requirements. Thus, 

EPA’s subsequent finding, that it is appropriate and necessary to regulate mercury emissions 

from Utility Units under section 112, is valid and cannot be reversed based on the theoretical and 

contrived premise that EPA has the, as yet unexercised, authority to regulate under some other 

provision of the Act. 

2. EPA has not and cannot demonstrate that section 111 will adequately address the 

public health hazards from mercury emissions. Even if EPA were correct that it could avoid 

MACT regulation by relying on its potential section 111 authority, rather than on section 112, 

EPA has not and cannot support its determination that its proposed section 111 regulation would 

adequately address the public health hazards posed by mercury emissions from Utility Units. 

EPA’s section 111 proposal will not be fully effective until at least 2018, leaving large 

segments of the American population subject to significant health risks for almost a generation. 
25

Moreover, EPA specifically states that even after the proposed regulation is fully in place, its 

cap-and-trade program for mercury emissions under section 111 “may not eliminate the risk of 

unacceptable adverse health effects of Hg emissions.” 69 Fed. Reg. 4686. Similarly, EPA has 

recognized that under a trading program some utilities may purchase allowances instead of 

reducing emissions and that these continued “emissions may have adverse health impacts within 

the local area.” Id.; see also, Obey, Doug, New Hampshire Data May Aid Opponents Of 

Emissions Trading In Mercury Rule, Inside Washington Publishers,8 (April 8, 2004) (citing a 

recent study by New Hampshire state officials suggesting that localized mercury deposition is a 

much greater concern than EPA has recognized). Because of these significant remaining health 

concerns, EPA is proposing to evaluate the health risks that remain after implementation of the 

cap-and-trade program. 

3. EPA’s attempts to harmonize the 1990 House and Senate amendments to the 

Clean Air Act to allow regulation of mercury emissions from Utility Units under section 111(d) 

lacks merit. As EPA admits, prior to the 1990 Clean Air Act amendments, 

section 111(d)(1)(A)(i) prevented the establishment of standards of performance for existing 

sources under section 111(d) for any pollutant, such as mercury, which is listed as a hazardous 

air pollutant under section 112(b)(1)(A). 69 Fed. Reg. 4685. As EPA also explains, it appears 

that the House and Senate passed two conflicting amendments to section 111(d)(1)(A)(i) as part 

of the 1990 amendments to the Clean Air Act. Id. As EPA states, the House amendment 

provides that “a standard of performance under CAA section 111(d) cannot be established for 

any air pollutant that is emitted from a source category regulated under section 112.” Id.

(emphasis added). The Senate amendment provides that “a standard of performance under 

section 111(d) cannot be established for any HAP that is listed in section 112(b)(1), regardless of 

what categories of sources of that pollutant are regulated under section 112.” Id.

EPA attempts to “harmonize” the Senate and House amendments by concluding that they 

together mean that “[w]here a source category is being regulated under section 112, a 

section 111(d) standard of performance cannot be established to address any HAP listed under 

112(b) that may be emitted from that particular source category.” Id. EPA apparently chooses 

this very narrow interpretation of section 111(d)(1)(A)(i), since otherwise regulation of existing 

Utility Units under section 111 would be barred by law, creating another clear legal barrier to 

EPA’s attempt to overturn its 2000 Regulatory Finding. 

EPA’s proposed “harmonization” is improper for at least three reasons: (1) EPA’s 

reading completely disregards the intent of the Senate simply to pass a conforming amendment 

and keep in place the existing bar on section 111 regulation of listed HAPs, (2) EPA’s attempted 

harmonization violates hornbook law regarding statutory interpretation, and (3) the Statutes at 

Large, which EPA notes constitute the legal evidence of the law, clearly bar section 111 

regulation for listed HAPs, regardless of whether they are from a listed source category. 

As EPA recognizes in its proposed rulemaking, the Senate’s amendment to 

section 111(d)(1)(A)(i) was merely a “conforming amendment” and was intended to maintain the 

 

8

 http://insideepa.com/secure/docnum.asp?f=epa_2001.ask&docnum=482004_data 
26

bar on section 111 regulation of any listed HAPs regardless of what categories of sources of that 

pollutant are regulated under section 112. Id. Despite this recognition of the Senate’s clear 

intent, EPA completely disregarded this intent when it “harmonized” the Senate and House 

amendments. Indeed, EPA reads section 111(d)(1)(A)(i) directly contrary to the Senate’s clear 

intent by asserting that this subsection only prevents section 111(d) regulation when a source 

category (as opposed to a HAP) is regulated by section 112 and only then for listed HAPs that 

may be emitted from the source category. 

Moreover, since the Senate and House amendments resulted in the enactment of two 

substantially different versions of section 111(d), EPA’s attempted “harmonization” [violates 

hornbook law regarding statutory construction.] When the houses of the legislature “. . . pass 

what purports to be the same bill but the contents differ substantially, the enrollment of the bill as 

finally passed is not conclusive, and the bill is not law.” Norman J. Singer, Sutherland Statutes 

and Statutory Construction ¶15.16 (2004) (emphasis added) (citing Volusia County v. State, 

125 So. 375, State ex rel. Caillouet v. Laiche, 29 So. 700 (La 1901), Bull v. King, 286 N.W. 311 

(MN 1929), Moore v. Neece, 114 N.W. 767 (Neb. 1908)). Thus, since as EPA admits, the House 

and Senate amendments differ substantially, neither amendment is the law. Rather, the law on 

this issue is as it was prior to the 1990 Clean Air Act amendments. Accordingly, 

section 111(d)(1)(A)(i) bars regulation of existing units under section 111 for mercury emissions, 

since mercury is a listed HAP. 

Finally, even if the conflicting House and Senate amendments could be read together to 

create one statement of the law, they would not support EPA’s reading. As EPA states, the 

Statutes at Large “constitute the legal evidence of the laws. . .” 69 Fed. Reg. 4685. The Statutes 

at Large for section 111(d) provide that a standard of performance may be established under 

section 111(d) “for any existing source for any air pollutant (i) . . which is not included on a list 

published under section 7408(a) (or emitted from a source category which is regulated under 

section 112) (or 112(b)). . .” Id. (parenthetical in original and emphasis added). Thus, the 

Statutes at Large provide that regulation under section 111(d) is prohibited in any one of at least 

three instances: (1) where a pollutant is listed under section 7408(a) or (2) where a pollutant is 

emitted from a regulated section 112 source category or (3) where a pollutant is included on a 

list published under section 112(b). 

For all of the above reasons, it is clear that regulation of mercury emissions under 

section 111(d) is prohibited. Therefore, EPA cannot legally regulate mercury emissions from 

existing units under section 111(d), and therefore, its arguments to overturn its 2000 Regulatory 

Finding lack merit. 

C. NRDC settlement requires EPA to regulate utility units under Section 112. On 

October 26, 1994 EPA and the Natural Resource Defense Council, Inc. (“NRDC”) executed a 

Settlement Agreement which provided that, by November 15, 1995 EPA must complete a health 

effects study and determine whether regulation of electric utility steam generating units under 

section 112 is appropriate and necessary. The Settlement Agreement also provided that if EPA 

found that regulation of utility units under section 112 was appropriate and necessary, then EPA 

would propose regulations under section 112 by November 15, 1998 and take final action on that 

proposal by November 15, 2000. See NRDC v. EPA, D.C. Cir. No. 92-1415 (Oct. 26, 1994). 
27

The dates in the original Settlement Agreement were subsequently modified in a 

November 17, 1998 Stipulation to provide that EPA must make the appropriate and necessary 

determination no later than December 15, 2000 and if EPA finds that regulation is appropriate 

and necessary, then it must propose section 112 regulations by December 15, 2003 and take final 

action on the proposed rule by December 15, 2004. 

Pursuant to the 1994 Settlement Agreement and the dates set out in the 1998 Stipulation, 

in December 2000 EPA determined that regulation of electric utility units under section 112 of 

the Clean Air Act is appropriate and necessary. See 65 Fed. Reg. 79825 (Dec. 20, 2000). EPA 

is therefore required by its agreement with NRDC to propose regulations under section 112 for 

electric utility units by December 15, 2003 and to take final action on those proposed rules by 

December 15, 2004. 

EPA’s January 30, 2004 proposed rule states that the EPA likely may not regulate utility 

units under section 112 of the Clean Air Act. Instead, EPA proposes to regulate such units under 

section 111. This attempt to avoid section 112 regulation conflicts with EPA’s previous 

Settlement Agreement with NRDC. Any attempt to regulate utility units under section 111, 

instead of section 112, constitutes a breach of its 1994 Settlement Agreement and 1998 

Stipulation Agreement with NRDC. 

D. The trust responsibility requires EPA to regulate under MACT. The trust 

responsibility requires EPA to protect tribal resources, especially in circumstances when those 

resources are relied upon by Indian tribes and their right to harvest such resources is protected by 

federal law. Such rights are held by Indian tribes on, and in many instances, off the Reservation 

lands. This responsibility is enhanced by the Environmental Justice Doctrine and by 

Executive Order 12,898 regarding environmental justice, since as discussed in detail above, 

FCPC and other impacted tribes clearly face disproportionate and adverse impacts from mercury 

deposition. See Sections III and IV supra. Here the EPA has the ability to require substantial 

reductions in mercury emissions that harm FCPC resources and is under a legal mandate to do 

so. The trust responsibility is one additional reason why EPA must comply with the law and 

require coal-fired power plants to meet a protective MACT standard under CAA Section 112. 

As discussed in Section IV.A.1 of these comments, under EPA’s Indian Policy and under 

the federal trust responsibility (which the Indian Policy embodies), EPA has an obligation to 

protect tribal rights and resources -- including the lands, waters and natural environment of 

Indian reservations. Under the Policy and the case law cited above, the relationship between the 

EPA and FCPC is the same as that of a private fiduciary to a beneficiary. 

This obligation is strengthened by EPA’s commitment to the principle of fair treatment of 

people of all races, cultures, and incomes – including Indian tribes – under the environmental 

justice doctrine and Executive Order 12,898 regarding environmental justice. See

Section IV.A.2. supra. In 2001 EPA specifically reaffirmed its obligations under the 

environmental justice doctrine and Executive Order 12,898. In so doing, EPA made clear that its 

commitment to environmental justice extends to the development and implementation of 

environmental regulations and policies. 
28

In this rulemaking, EPA must consider the severe impact mercury pollution has on the 

FCPC reservation and on other lands owned and/or used by FCPC and its members for cultural 

purposes. As described above in Section III, mercury pollution of water and water-dependant 

resources has a severe impact on FCPC’s ability to continue its cultural practices. It is clear, 

however, that the regulatory options EPA is considering in this rulemaking would not adequately 

address the mercury contamination of FCPC water, lands and cultural resources. The trust 

responsibility requires more than this. 

Under the trust responsibility, federal agencies must administer their own programs and 

activities in a manner that avoids adverse impacts on Indian rights. This is shown, for example, 

by the decisions in Pyramid Lake Paiute Tribe v. Morton, 354 F. Supp. 252 (D.D.C. 1972), and 

Muckleshoot Indian Tribe v. Hall, 698 F. Supp. 1504 (W.D. Wash. 1988), cited above. The 

holdings of these cases reflect prior decisions of the Supreme Court which establish that the trust 

responsibility imposes legal duties on federal agencies separate and apart from the express 

provisions of a treaty, statute, regulation or executive order. 

In Pyramid Lake Paiute Tribe v. Morton, the court enjoined diversions of water for a 

federal reclamation project which adversely affected a lake located downstream of the project on 

the Pyramid Lake Paiute Tribe’s Reservation. In that case the Tribe’s members lived on the 

shores of the lake and fished its waters for food. 354 F. Supp. at 254. Although the diversions 

violated no specific statute or treaty, the court held that the Agency’s decision to divert water 

constituted a violation of the trust responsibility. Id. at 256. The court ruled that in order to 

fulfill his duties as trustee, the Secretary of the Interior was obliged to insure that the tribe 

received all water not otherwise obligated by court decree or contract. Id. Under the trust 

analysis of this case, EPA has a duty to prevent degradation due to mercury deposition of 

resources relied on by tribes, and to prevent impacts to tribal rights to such resources. 

Making decisions under the Clean Air Act that affect tribal lands similarly implicates 

EPA’s duty as a trustee to FCPC and to other tribes. This fiduciary responsibility requires a high 

standard of conduct by EPA. In Navajo Tribe v. United States, 364 F.2d 320, 322-24 (Ct. Cl. 

1966), for example, an oil company had leased tribal land for oil and gas purposes. Upon 

discovering helium-bearing non-combustible gas which it had no desire to produce, the company 

assigned the lease to the Federal Bureau of Mines. The Bureau then developed and produced the 

helium under the terms of the assigned federal lease instead of negotiating a new, more 

remunerative lease for the tribe. The Court of Claims held this to violate the trust responsibility, 

and analogized these facts to the case of a “fiduciary who learns of an opportunity, prevents the 

beneficiary from getting it, and seizes it for himself.” Id. at 324. 

As Navajo Tribe exemplifies, the “most fundamental duty owed by the trustee to the 

beneficiaries of the trust is the duty of loyalty . . . to administer the trust solely in the interest of 

the beneficiaries.” Pegram v. Herdrich, 530 U.S. 211, 224 (2000) (quoting 2A Austin W. Scott 

& William F. Fratcher on Trusts § 170 at 311 (4th ed. 1987)); accord NLRB v. Amax Coal Co., 

453 U.S. 322, 327 (1981); Restatement (Second) of Trusts § 170 (1959); George G. Bogert and 

George T. Bogert, Law of Trusts and Trustees § 543, at 217-19 (2d rev. ed. 1993). 
29

From the proposed rule it appears that EPA desires to abandon the requirements of CAA 

Section 112 and the development of a proper MACT standard that goes along with it. As these 

comments demonstrate, EPA can effectively limit mercury emissions, doing so has very positive 

benefits for those who live downwind of mercury-emitting power plants, and EPA has a legal 

mandate to properly restrict mercury emissions under CAA Section 112. That is exactly what 

EPA should be doing. Any other path is inconsistent with EPA’s trust responsibility to FCPC 

and to other tribes. Failing to properly regulate mercury emissions would also be contrary to 

EPA’s commitment to fair treatment of Indian tribes under the Environmental Justice Doctrine. 

VII EPA’s MACT floor analysis is improper and sets emission limits that are several 

times higher than appropriate. 

A. EPA’s methodology for developing MACT floor must be reasonably based (i.e., it 

must reasonably estimate the performance of the relevant best-performing plants) and must be 

demonstrated with substantial evidence. While EPA likely has the authority to devise the 

methodology of deriving the MACT floor, such methodology must reasonably estimate the 

performance of the best performing units, and the Agency must demonstrate with substantial 

evidence why its methodology provides a reasonable estimate. See Northeast Maryland Waste 

Disposal Authority v. EPA, 358 F.3d 936, (D.C. Cir. 2004) (“To satisfy [Clean Air Act] 

requirement, EPA must demonstrate with substantial evidence -- not mere assertions -- that the 

chosen floors represent ‘a reasonable estimate of the performance of the [best-performing] 

units.”) (internal quotations omitted; citation omitted); Cement Kiln Recycling Coalition v. EPA, 

255 F.3d, 855, 862 (D.C. Cir. 2001) (“While acknowledging that EPA has authority to devise the 

means of deriving [the MACT floor]. . . the method the Agency selects must ‘allow[ ] a 

reasonable inference as to the performance of the top 12 percent of units. . .’[and] EPA must 

show not only that it believes its methodology provides an accurate picture of the relevant 

sources’ actual performance, but also why its methodology yields the required estimate.”) 

(emphasis in original) (citing Sierra Club v. EPA, 167 F.3d 658, 663); National Lime 

Association v. EPA, 233 F.3d 625, 632 (D.C. Cir. 2000) (“. . .to comply with the statute, EPA’s 

method of setting emission floors must reasonably estimate the performance of the relevant best 

performing plants.”). 

B. EPA’s proposed methodology fails to reasonably estimate the performance of the 

relevant best-performing plants and EPA cannot demonstrate that its methodology is reasonably 

based because it improperly uses a short-term worst-case analysis to develop a long-term average 

standard. To establish the MACT floor, EPA essentially adopted a utility industry-friendly 

methodology prepared by ENSR Corporation for WEST Associates. See Memorandum from 

William H. Maxwell to the Utility MACT Project Files, Analysis of variability in determining 

MACT floor for coal-fired electric utility steam generating units, Nov. 26, 2003 (EPA’s “MACT 

Variability Analysis”) (“A multi-variable analysis provided by WEST Associates... appeared to 

provide the most comprehensive approach and has been adopted, with modifications... by the 

EPA in determining the MACT floor.”) (emphasis added). See also, Multivariate Method to 

Estimate the Mercury Emissions of the Best-Performing Coal-Fired Utility Units Under the Most 

Adverse Circumstances Which Can Reasonably be Expected to Recur, March 4, 2003. In fact, 

EPA took additional steps, discussed below, to make the methodology even more friendly to the 

utilities. 
30

As indicated above, FCPC has retained the services of Mr. Ted Johnson, an expert in 

exposure assessment and air quality analysis to review the methodology used by EPA to 

establish the MACT floor. Based on Mr. Johnson’s analysis, it is clear that EPA’s adopted 

methodology fails to reasonably estimate the performance of the best-performing units, and 

cannot be supported by substantial evidence for the following reasons. 

1. EPA fails to reasonably estimate the performance of the relevant best performing 

plants since it uses a short-term worst-case emission rate to calculate a long-term average

standard. EPA is proposing that “[c]ompliance with the Hg emission limit would be determined 

based on a rolling 12-month average calculation.” 69 Fed. Reg. 4663. EPA has also determined 

that mercury is highly toxic, persistent, and bioaccumulates in the food chain, and that “[f]ish 

consumption dominates the pathway for human and wildlife exposure to mercury.” 65 Fed. Reg. 

79827. Since it appears that the primary health hazard associated with mercury emissions is due 

to long-term or chronic exposure. EPA’s development of a long-term average compliance 

standard appears to be reasonably based. 

However, EPA then adopted the utility industry’s variability analysis that calculated the 

long-term coverage emissions standard using a short-term worst-case emission rate. This 

calculation method is wholly inappropriate and prevents EPA’s MACT floor methodology from 

reasonably estimating the performance of the relevant best performing sources. As Mr. Johnson 

notes in the attached memorandum, it is clear that the averaging time for compliance 

demonstrations should be consistent with the averaging time of the data used to establish the 

emission limit. See Memorandum from Mr. Ted Johnson, TRJ Environmental, Inc., Comments 

on the Proposed MACT Floors for Mercury Emissions from Coal-Fired Utility Units, April 27, 

2004 (“Johnson Comments”) (attached as Exhibit K). For example, if the compliance 

demonstration was to be based on an hourly emission rate, then it would be appropriate to 

establish an emission limit based on the potential emissions that could occur in any 1-hour period 

over the full range of possible operational scenarios. Similarly, if the compliance demonstration 

is to be based on based on a 12-month rolling average, the emission limit should likewise be 

based on the average emissions over the range of possible operational scenarios that that could 

occur over the course of a year. As indicated earlier in these comments, because of the 

importance of developing appropriate and legally defensible mercury emission limits, FCPC 

requests that EPA carefully review Mr. Johnson’s analysis contained in the Johnson Comments. 

EPA apparently adopted the utility industry’s variability analysis because it believes that 

mercury emission rates would be greatly influenced by coal composition. See 60 Fed. Reg. 4672 

(“The variability of Hg emissions from coal-fired units is significantly influenced by the 

variability over time in the composition of the coal burned as fuel”). Moreover, because the 

available stack test data was representative of the coal being burned at the time of the test, EPA 

apparently believed it was necessary to estimate the mercury emissions that may be expected to 

occur over the full range of coal compositions. To account for variability in coal composition 

(e.g., heat content, mercury content, chlorine content) the utility industry developed and EPA 

adopted a correlation equation and estimated the mercury removal fraction based on coal 

composition data from the ICR (Information Collection Request) data base. Id. (“The purpose of 

deriving a correlation equation. . . was to provide a numerical means of predicting the fraction of 

Hg removed for the best-performing sources over the entire range of fuel variability experienced 
31

by each of those sources over the course of a year.”). However, where the correlation equation 

was deemed to be a “poor fit,” the utility industry and EPA based the mercury removal fraction 

on the average mercury removal fraction observed in the actual stack tests. Id. at 4673. 

For each of the best performing units, the utility industry and EPA then calculated the 

mercury emission rates over the full range of coal compositions presumed to be used by that unit 

and sorted those emissions from smallest to largest to obtain a cumulative frequency distribution. 

Id. EPA then decided, without any rational basis, to discard 97.5 percent of the best emission 

results of the relevant facilities and to propose a standard based solely on the worst 2.5 percent of 

emissions from the relevant sources. As EPA notes, it determined that “[t]he 97.5 percentile 

value of this distribution (i.e., an emission rate that is expected to be exceeded only 2.5 percent of 

this time) would represent the operation of the unit under conditions reasonably expected to 

occur at the unit.” Id. (emphasis added); see also, MACT Variability Analysis, at 7 (“The EPA 

chose to use the 97.5th percentile (as opposed to the 95th percentile used in the WEST analysis) 

value of this distribution (i.e., an emission rate that is expected to be exceeded only 2.5 percent 

of the time) to represent the operation of the unit under ‘worst conditions.’”) (emphasis added). 

EPA has not and cannot demonstrate why its proposed use of a short-term worst 

condition approach reasonably estimates the performance of the best performing units given its 

long-term average standard. This is because the use of short-term worst case data clearly and 

substantially overstates the long-term (e.g., 12-month) emissions from the best performing units. 

EPA’s own documents show this fact. EPA’s MACT variability analysis shows that the 97.5th

percentile emissions are substantially greater than the average or median emissions from these 

plants. For example, for the Mecklenburg 1 bituminous-fired unit, the 97.5th percent emission 

level is approximately 1.8051 lbs/TBtu, the average emissions level is 0.5700 lbs/TBtu (less than 

one-third of the 97.5th percent emission level), and the median is 0.1385 lbs/TBtu (less than onetwelfth of the 97.5th percent emissions level). MACT Variability Analysis, Mecklenburg 1: 97th

percentile = 1.8051 lb Hg/TBtu Graph. 

This type of unsupported and inappropriate methodology clearly does not satisfy the 

requirement for the EPA to adequately explain why its methodology is reasonable and for EPA’s 

methodology to reasonably estimate the performance of the best-performing units. For example, 

in Cement Kiln, the D.C. Circuit vacated EPA’s MACT standards for hazardous waste 

combustors in part because EPA had not adequately explained why its MACT setting approach 

was reasonable. 255 F.3d at 865 (“Some of the agency’s citations to the record merely contain 

assertions that ‘[the] approach... fully accounts for normal process variability.’”) (citing EPA’s 

Final Response to Comments: MACT Floor Approaches at 59) (quotations and omissions in 

original). Likewise, in Northeast Maryland Waste Disposal Authority, the D.C. Circuit made 

clear that “to satisfy [Clean Air Act] requirements, EPA must demonstrate with substantial 

evidence – not mere assertions – that the chosen floors represent ‘a reasonable estimate of the 

performance of the [best-performing] units.” 358 F.3d at 936 (internal quotations omitted; citing 

Cement Kiln at 866). 

Accordingly, EPA’s use of a 97.5 percentile (i.e., short-term worst-case) factor to 

calculate a long-term average MACT floor standard is inappropriate, lacks merit and cannot be 
32

demonstrated to reasonably estimate the long-term average performance of the relevant best 

performing sources. 

2. EPA’s own documents recognize that its variability analysis is inconsistent with 

setting a standard that is enforced on a long-term average basis. In setting the MACT floor, EPA 

states that although it believes the available emission data is representative of the industry, the 

data exhibited a significant degree of variability. See MACT Variability Analysis, at 1 

(“Although EPA is confident that the data available are representative of the industry, it is 

evident that the test report data exhibit a significant degree of variability, even within a given 

subcategory.”). EPA thus concluded that “it was necessary to develop a methodology to address 

the multiple sources of the observed variability in order to assure that an emission limitation 

value could be derived that would be achievable.” Id. As a result, it appears that EPA attempted 

to account for the variability in emissions that could occur on a short-term worst-case basis. In 

other words, EPA attempted to establish a long-term emission limit that would normally not be 

exceeded at any time during any operational scenario by basing the limitation on a short-term, 

worst-case variability analysis. 

However, EPA’s own documents acknowledge that its variability analysis is 

inappropriate where a long-term compliance average period is allowed. EPA’s MACT 

Variability Analysis “found that there are two fundamentally different approaches to 

incorporating variability into the proposed rule: (1) including variability in the MACT floor 

calculation, or (2) including variability in the compliance method.” Id. at 2 (emphasis added). 

Regarding the second method, EPA stated that “[a]ddressing variability in the compliance 

method would involve allowing an averaging time for compliance that would accommodate 

variations in pollutant emissions over time.” Id.

Thus, according to the MACT Variability Analysis, it is appropriate to choose one of two 

fundamentally different methods to account for variability in the data. Unfortunately, EPA chose 

to use both methods in the proposed rule. That is, not only did EPA allow compliance 

determinations “based on a rolling 12-month average calculation” but it also went to great 

lengths to “adjust” the available emission data to account for variability. 69 Fed. Reg. 4663. 

As Mr. Johnson notes, allowing compliance to be determined based on a 12-month 

rolling average is more than adequate to account for any short-term variations in emissions that a 

particular source may experience. See Johnson’s comments at 6. But it is not just Mr. Johnson 

that says this, EPA’s own documents plainly state “averaging over a month or year of data will 

provide opportunity for variations in the amount of a constituent in the fuel to be accommodated 

without exceeding the emission limitation.” MACT Variability Analysis, at 2. Accordingly, 

given EPA’s long-term compliance demonstration period, there is no need for EPA’s proposed 

short-term, worst-case variability analysis. Rather, the MACT floor should be set simply using 

the mathematical average of the emission data for each of the top 12 percent of existing sources 

(or the top performer in the case of new sources). 

3. EPA also improperly inflates the average emissions of the relevant best 

performing plants in setting the MACT floor for existing sources by using a 97.5 percent upper 

confidence level. After applying the 97.5 percentile short-term worst case factor discussed 
33

above, EPA takes the additional unusual step of applying yet another variability factor to 

“account for inter-unit variability among the top performers for existing sources.” 69 Fed. Reg. 

4673. Without any explanation, EPA states that “[a] focus on within-unit variability alone is not 

expected to capture the full range of emission variability among the best-performing sources. 

The EPA accounted for this variability by calculating a 97.5 percent upper confidence level for 

the mean by use of the student t-statistic.” Id.

(a) Applying a 97.5 percent upper confidence level to estimate the emissions of topperforming units for which EPA does not have emission data violates the Clean Air Act. 

Although the preamble is unclear, it appears EPA is applying the 97.5 percent upper confidence 

level to the existing emission data for the top-performing units to estimate the emission rate that 

might be calculated if EPA had actual emission data from all top-performing units. For example, 

the MACT Variability Analysis states that “[t]his adjustment reflects the fact that the top 

performing sources in the data base do not represent the full population of the best performing 

12 percent of coal-fired utility units.” MACT Variability Analysis, at 7 (emphasis added). In 

other words, it appears that EPA believes that there are other units for which it doesn’t have 

emission data that would nevertheless be in the top 12 percent of the subcategory. 

Similarly, as Mr. Johnson explains in his comments a confidence interval, such as this 

used by EPA, “is typically used to indicate the degree to which a ‘sample mean’ – a mean 

determined from a relatively small sample of measurements – is likely to differ from the ‘true 

(population) mean’ – the mean that would be determined from a much larger (possible infinite) 

set of measurements.” Johnson Comments at 7. Accordingly, the confidence interval should 

only be used if EPA were setting the MACT floor at the emission level achieved by the top 12 

percent of units regardless of whether EPA had emission information from all such units. 

However, whether the data base reflects the “full population of the best performing. . . 

units” is irrelevant to setting a proper MACT floor. The Clean Air Act clearly states that the 

MACT floor is to be based on the “average emission limitation achieved by the best performing 

12 percent of the existing sources (for which the Administrator has emissions information) . . .” 

42 U.S.C. § 7412(d)(3)(A) (emphasis added). Thus, the statute does not allow the EPA to try to 

guess what the performance of the top 12 percent would be if data were available from all of the 

top-performing units. Rather, the statute simply requires EPA to develop the MACT floor based 

on the sources for which EPA has emission data. Accordingly, EPA’s attempt to manipulate the 

existing emission data to estimate what the emission rate might be if EPA had data from all topperforming units violates the Clean Air Act’s clear mandate to consider only the units for which 

EPA has emissions information. 

(b) Assuming a 97.5 upper confidence level on the top performing units is arbitrary 

and caprious and cannot be justified. As explained in the previous section, EPA cannot 

manipulate existing emission data to estimate missing emission data from other units. However, 

even if EPA could properly employ a confidence interval in its analysis, the use of EPA’s 

proposed 97.5 percent upper confidence level would be arbitrary and caprious. 

EPA chose a 97.5 percent confidence interval meaning that there is a 97.5 percent 

probability that the true mean will fall somewhere within that interval. See Johnson Comments 
34

at 7. The choice of a 97.5 percent confidence interval means that there is a 2.5 percent chance of 

the true mean being outside this interval (i.e., a 1.25 percent chance of being above the upper 

confidence limit and a 1.25 percent chance of being below the lower confidence limit). Thus, 

there is a 98.75 percent chance that the upper confidence limit overestimates the true mean 

(likewise there is a 98.75 percent chance that the lower confidence limit will underestimate the 

true mean). Accordingly, the use of a 97.5 percent upper confidence limit is not a reasonable 

estimate of the true mean of a population since there is almost a 99 percent certainty that it 

overestimates the true mean. 

Moreover, it is clear that the choice of the actual percent confidence level will greatly 

influence the upper and lower limits. Although EPA chose a 97.5 percent confidence level, it 

could just have easily chosen a 90 percent or other confidence level. See id. Accordingly, 

because EPA has not provided any justification as to why is choose the 97.5 percent confidence 

level, the use of such an upper confidence level is arbitrary and caprious. 

(c) The use of a 97.5 percent upper confidence level is inconsistent with EPA’s own 

guidance and past practices. EPA’s use of the 97.5 percent upper confidence limit is contrary to 

its own practices and guidance regarding the setting of MACT standards. Early in the 

development of MACT standards, EPA determined that a simple average should be used. In 

particular, EPA found that “the most natural and straightforward reading of this language [in 

section 112(d)(3)(A)] would have EPA first determine the emission limitations achieved by 

sources within the best performing 12 percent, and then average those limitations.” National 

Emission Standards for Hazardous Air Pollutants for source Category: Organic Hazardous Air 

Pollutants From the Synthetic Organic Chemical Manufacturing Industry and Other Processes 

Subject to they Negotiated Regulation for Equipment Leaks; Determination of MACT ‘Floor,’

Final Rule, 59 Fed. Reg. 29296 (June 6, 1994). In this rulemaking, the term “average” was 

“interpreted to mean a measure of central tendency such as the arithmetic mean or median.” Id.

EPA later restated its simple averaging approach when it developed general guidance for 

the MACT standards. See Guidelines for MACT Determinations under Section 112(j) 

Requirements, EPA 453/R-02-001 (Feb. 2002) (informing states that they should use the simple 

averaging approach set forth in the June 6, 1994 rulemaking when developing MACT standards). 

Moreover, as Mr. Johnson notes, EPA’s historical use of the simple average is the best and least 

biased estimate of the “average” of a set of numbers. See Johnson Comments at 7. Accordingly, 

there is no reason for EPA to abandon this approach now. 

Mr. Johnson has also conducted a review of the methodologies used by EPA to establish 

the MACT floor for other categories of sources regulated under section 112. Based on this 

review and consistent with EPA’s 1994 interpretation, Mr. Johnson has concluded that “EPA 

should use the simple arithmetic mean of the four or five unit values in each category as the 

MACT floor, as the simple mean is the best (least biased) estimate of the average performance of 

these units, regardless of the degree of variability exhibited by these data.” Johnson Comments 

at 7 (citing Snedecor and Cochran, Statistical Methods, Iowa State University Press, section 4.4, 

1980). Indeed, while Mr. Johnson’s review has found numerous examples where EPA has used 

a simple average of the relevant facilities to set the MACT floor, in no cases except the rules 
35

EPA is proposing this spring has his review identified situations where any upper confidence 

limit in averaging has been used. 

Accordingly, in setting the MACT floor for existing Utility Units, EPA is required to take 

a simple average of the emission rates achieved by the best performing 12 percent of the units in 

the source category. 

(d) EPA’s use of the 97.5 percent upper confidence level improperly results in a 

MACT floor that is in most cases higher than emissions from the worst-performing relevant 

units. The results of EPA’s use of 97.5 percent upper confidence level demonstrate the 

problems with its approach. The plain language of the Clean Air Act requires that the average of 

the relevant units be used in creating the MACT floor. See 42 U.S.C. §7412(d)(3)(A) (requiring 

the MACT floor to be no less stringent than “the average emission limitation achieved by the 

best performing 12 percent of the existing sources . . . .”). In contrast, EPA’s use of this upper 

confidence level causes it to create MACT standards that are in most cases higher than the worstperforming relevant facilities. 

For example, the worst performing bituminous unit used by EPA to set its MACT floor 

had measured emissions of 0.10620 lbs/TBtu. See MACT Variability Analysis. After applying 

the 97.5 variability percentile factor, this unit had an adjusted emission rate of approximately 

1.8 lbs/TBtu. Id. However, the final proposed standard for bituminous units was calculated to be 

2.0 lbs/Tbtu (i.e., 11 percent higher than the emissions of the worst performer). Similarly, for 

subbituminous units, the worst performing unit had an adjusted emission rate of approximately 

5.583 lbs/Tbtu. EPA’s proposed standard is 5.8 lbs/Tbtu (i.e., 4 percent higher than the worst 

performer). The worst performing units for the waste coal and IGCC units had adjusted emission 

rates of approximately 0.158 and 7.34 lbs/TBtu respectively. EPA’s proposed standards are 

0.38 and 19 lbs/Tbtu (i.e., 141 and 159 percent higher than the worst performer). Only for 

lignite units is the proposed standard set below the worst performer. However, even here the 

final standard was set well above the average of the relevant facilities and almost as high as the 

worst performer (9.2 vs. 9.53 lbs/TBtu). Accordingly, rather than complying with the 

Clean Air Act and creating a standard that is the average of the relevant facilities for which EPA 

has data, EPA proposes a standard that in almost all cases allows for more emissions than the 

worst-performing relevant facility. 

C. Trust responsibility heightens EPA’s responsibility to properly develop MACT 

floor. As discussed above in Section VI.D of these comments, the trust responsibility based on 

federal Indian law and on EPA’s Indian Policy requires EPA to protect resources that Indian 

tribes rely upon. In this case the resources affected by mercury contamination have particular 

cultural importance to FCPC. The surface waters that emissions from coal-fired power plants 

contaminate with mercury (which then becomes toxic methylmercury) are critical to FCPC 

cultural practices. FCPC members also fish, hunt, and gather materials (such as medicinal 

plants) that can be affected by mercury contamination. Each of these activities has a cultural 

dimension and harm to these resources harms FCPC members. 

As presented above, the trust responsibility applies to actions by the federal government 

including agency actions such as rulemakings. As these comments make clear, EPA’s proposal 
36

strongly suggests that EPA will fail to properly develop the MACT floor (if the Agency even 

ends up acting under Section 112). Not only does the Clean Air Act require EPA to do this, but 

the trust responsibility and the environmental justice doctrine add substantial weight to this legal 

mandate. 

D. EPA’s improper calculation of the MACT results in a mercury standard that is up 

to five times higher than appropriate. Mr. Johnson calculated the MACT floor using EPA’s 

general methodology but eliminating EPA’s improper use of a short-term worst-case approach to 

develop a long-term average standard, and its improper use of a 97.5 percent upper confidence 

level. Mr. Johnson’s corrected calculations demonstrate the EPA’s proposed MACT floor 

standards for existing sources allow up to five times more emissions of toxic mercury than proper 

MACT floor calculations would permit. Likewise, Mr. Johnson’s corrected calculations show 

that EPA’s proposed MACT floor standards for new sources allow up to four times more

emissions than proper MACT floor calculations would allow. 

1. EPA’s MACT standard should be based on the simple average of the 12-month 

emissions from the relevant best-performing sources. As explained in section VII.B. above, EPA 

has determined that a compliance demonstration based on a 12-month rolling-average is 

appropriate for the MACT standard. However, EPA inappropriately estimated its proposed 

long-term average emission limit based on a variability analysis that used a short-term 

worst-case emission rate. In addition, EPA discarded the requirements of Section 112 and its 

own guidance and precedents in setting MACT floors to apply a 97.5 percent upper confidence 

level, which substantially overstates the average emissions of the relevant facilities. 

As explained in section VII.B., in order to be consistent with the 12-month compliance 

demonstration averaging period, EPA must develop the MACT limit based on an emission rate 

averaged over a similar 12-month period. Accordingly, it is improper for EPA to address shortterm variability by applying its 97.5 percentile factor. Likewise, as discussed above, nothing in 

the Clean Air Act or EPA’s history of creating MACT standards supports the use of EPA’s 

proposed upper confidence level. Rather, the MACT floor should simply be set at the average of 

the emission rates achieved by the best-performing units. 

2. Calculation of the MACT floor for existing sources using the simple average of 

12-month emissions from the relevant best-performing sources yields emission limitations that 

are less than one-half to less than one-fifth of those allowed under EPA’s proposal. Mr. Johnson 

has calculated the MACT floor by eliminating EPA’s improper use of the 97.5 percentile 

short-term, worst-case factor and its additional 97.5 percent upper confidence level. In all other 

significant respects, Mr. Johnson’s methodology follows EPA’s. 

The results obtained by Mr. Johnson show that when the MACT floor is properly 

calculated for the long-term compliance averaging period proposed by EPA, the emission limits 

are less than one-half to less than one-fifth of the limits established in the proposed rule. In 

particular, Mr. Johnson’s corrected calculations of the MACT floors produce emission 

limitations of: 
37

 0.346 lbs/TBtu for bituminous-fired plants (less than one-fifth of EPA’s proposed 

standard of 2.0 lbs/TBtu). 

 1.362 lbs/TBtu for subbituminous-fired plants (less than one-fourth of EPA’s 

proposed standard of 5.8 lbs/TBtu). 

 4.050 lbs/TBtu for lignite-fired plants (less than one-half of EPA’s proposed standard 

of 9.2 lbs/TBtu). 

 0.093 lbs/TBtu for coal refuse-fired plants (less than one-fourth of EPA’s proposed 

standard of 0.38 lbs/TBtu). 

 4.237 lbs/TBtu for IGCC units (less than one-fourth of EPA’s proposed standard of 

19 lbs/TBtu). 

See Johnson Comments, Table 2. 

3. Calculation of the MACT floor for new sources using the one-year average 

emissions from the relevant best performing source yields emission limitations that are as low as 

one-fourth of those allowed by EPA’s proposal. Mr. Johnson’s calculations also show that 

EPA’s proposed MACT floor for new sources allows for significantly greater emissions than 

appropriate. Indeed, with the exception of IGCC units, the proposed MACT floor standards 

allow for emissions that are approximately 19 percent to more than four times too high. This is 

because EPA’s proposed MACT floor standards were developed using EPA’s inappropriate 

97.5th percentile short-term worst-case to develop long-term average standards. In particular, 

Mr. Johnson’s corrected calculations of the MACT floor standards for new sources produce 

emission limitations of: 

 0.148 lbs/TBtu or approximately 1.55 10-6 lb/MWh for bituminous-fired plants (just 

slightly over one-fourth of EPA’s proposed standard of 6.0 10-6 lb/MWh). 

 1.006 lbs/TBtu or approximately 10.6 10-6 lb/MWh for subbituminous-fired plants 

(just slightly over one-half of EPA’s proposed standard of 20 10-6 lb/MWh). 

 1.285 lbs/TBtu or approximately 13.5 10-6 lb/MWh for lignite-fired plants (less than 

one-fourth of EPA’s proposed standard of 62 10-6 lb/MWh). 

 0.085 lbs/TBtu or approximately 0.893 10-6 lb/MWh for coal refuse-fired plants 

(approximately 19 percent lower than EPA’s proposed standard of 1.1 10-6 lb/MWh). 

See Johnson Comments, Table 2. 

Indeed, the only units for which EPA’s proposed standard is less than a properly 

calculated MACT floor is for the IGCC units, where EPA appropriately requires a 90 percent 

reduction based on the use of carbon bed technology. 
38

VIII Need for EPA to set standard more stringent than MACT floor. 

Both the Clean Air Act and EPA’s trust responsibility clearly require it to establish a 

MACT standard that is more stringent than the MACT floor when such a more stringent standard 

is feasible. 

A. EPA must establish a MACT standard that results in maximum degree of 

reduction achievable considering costs and other concerns. Section 112 requires EPA to set a 

standard that does not merely meet the MACT floor, but also results in the maximum degree of 

reduction in emissions that is achievable taking into account cost, non-air quality health, and 

environmental impacts, and energy requirements. In particular, section 112(d)(2) provides that 

MACT standards “shall require the maximum degree of reduction in emissions . . . that the 

Administrator, taking into consideration the cost of achieving such emission reduction, and any 

non-air quality health and environmental impacts and energy requirements, determines is 

achievable . . . .” 42 U.S.C. § 7412(d)(2) (emphasis added). This maximum degree of reduction 

is often referred to as the “beyond-the-floor” standard. See, e.g., 69 Fed. Reg. 4675. As EPA 

has stated in previous rulemakings, “[t]he object of a beyond-the-floor standard is to achieve the 

maximum degree of emission reduction without unreasonable economic, energy, or secondary 

environmental impacts.” 64 Fed. Reg. 52828, 52852, Final Standards for Hazardous Air 

Pollutants for Hazardous Waste Combustors, Final Rule, Sept. 30, 1999. 

1. EPA’s improperly fails to consider achievable mercury controls solely because 

they may not be applicable to all sources within a category or sub-category and as a result fails to 

establish a proper beyond-the-floor standard. EPA concludes that several of the technologies 

discussed in the preamble are not viable because they may not be applicable to all sources within 

a category or sub-category. For example, EPA states “that pre-combustion measures are not a 

viable emissions reductions approach for all units in the category . . . .” 69 Fed. Reg. 4669 

(emphasis added). Similarly, EPA states that it “believes that 90 percent emission reductions 

cannot be achieved across all Utility Units in the proposed section 112 time frame.” 69 Fed. Reg. 

4674 (emphasis added). 

EPA’s reliance on a particular control technology being available to all units across the 

county is misguided and inconsistent with the Clean Air Act’s mandate to require the maximum 

degree of emissions reductions. See 42 U.S.C. §7412(d)(2). Section 112 is clear that the 

required degree of emission reductions can be achieved through the application of a variety of 

“measures, process, methods, systems or techniques.” Id. These measures can include, process 

changes, material substitutions, elimination of emissions, capture and treatment controls, and 

design, equipment, work practice or operational standards or any combination of the foregoing. 

See 42 U.S.C. §7412(d)(2)(A)-(E). 

Moreover, EPA guidance to the states makes it clear that a MACT standard may be a 

numerical emission limit, a production ratio, a concentration limit or a performance-based 

standard (e.g., a 90 percent reduction from a baseline). See Guidelines for MACT 

Determinations under Section 112(j) Requirements, EPA 453/R-02-001 (Feb. 2002). EPA also 

indicated that “[t]he MACT emission limitation may be based on a design, equipment, work 

practice, operational standard, or any combination of these.” Id.
39

Accordingly, it is clear that the emission standard does not need to be based on any single 

type of control technique. Rather, the standard must be based on the maximum degree of 

emission reductions achievable through any combination of emission control or reduction 

techniques. Thus, even if a particular control technique is not universally applicable to all Utility 

Units, the proper focus should be on whether there are other available techniques that would 

allow all Units to achieve the required standard. For example, if there is a suite of control 

options available, none of which could be implemented by all Units, but where all Units could 

implement at least one or more of the control options, EPA is required to adopt a MACT 

standard reflective of the overall level of emission reductions that could be achieved when each 

Unit implements the control options that are available to that particular Unit. 

Dr. Fox, the FCPC’s expert in pollution control technologies notes that “[n]o single 

technology is likely to universally apply to all facilities due to the differences in the design of the 

pollution control train used to control other pollutants (NOx, SO2 PM10, H2SO4), differences in 

coal type, and differences in boiler design.” Fox, J. Phyllis, Comments on Proposed National 

Emission Standards for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards 

of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating 

Units, 3 (April 27, 2004) (“Fox Comments”). However, Dr. Fox has identified “many 

technologies that are currently commercially available or soon to be commercially available” and 

concludes that “[o]ne or more of these technologies from this portfolio could be deployed today 

to reduce Hg from each of the plants in the entire US fleet of coal-fired power plants by at least 

90%.” Id. at 4 (emphasis added). As indicated earlier in these comments, because the Fox 

Comments contain detailed information regarding available mercury control technology, as well 

as numerous attachments that discuss the technology, FCPC requests that EPA carefully review 

Dr. Fox’s report and its attachments. 

Indeed, EPA itself has recognized the value of a “portfolio approach” to mercury 

emissions control. In its Supplemental Notice for the proposed mercury reduction rule, EPA 

acknowledges that “[m]ercury-specific pollution control device development has made major 

strides since the EPA announced its Information Collection Request in 1998. Currently, there 

are a broad range of technologies under consideration, consistent with the view that the EPA 

believes a portfolio approach is required to adequately and effectively implement significant 

reductions in mercury emissions from coal-fired power plants.” 69 Fed. Reg. 12398, 12401 

(March 16, 2004). 

Accordingly, it is clear that EPA’s failure to consider all available control options and its 

refusal to establish a proper beyond-the-floor MACT standard violates the Clean Air Act’s 

mandate to require “the maximum degree of reduction in emissions . . . that the Administrator, 

taking into consideration the cost of achieving such emission reduction, and any non-air quality 

health and environmental impacts and energy requirements, determines is achievable . . . .” 

42 U.S.C. § 7412(d)(2). 

2. EPA has found that some utility units can achieve 90 percent mercury emission 

reductions. In response to a report from Environmental Defense indicating that coal-fired power 

plants should be able to achieve 90 percent Hg emission reductions, EPA states that it “expects 

that some Utility Units can achieve such high reduction rates.” 69 Fed. Reg. 4674 (citing Out of 
40

Control and Close to Home: Mercury Pollution from Power Plants, Environmental Defense, 

2003). However, EPA further states that it “believes that 90 percent emission reductions cannot 

be achieved across all Utility Units in the proposed section 112 time frame.” Id. (emphasis 

added). Although EPA tries to distinguish coal-fired boilers from municipal waste combustors 

and health, medical and infectious waste incinerators, which are currently required to achieve an 

85 percent reduction in mercury emissions (see e.g., 40 C.F.R. §60.52b(a)(5); 40 C.F.R. Subpart 

Ec, Table 1) such a distinction does nothing to address EPA’s conclusion that at least some 

Utility Units can achieve very high levels of mercury reductions. Indeed, Dr. Fox cites an 

example of a pollution control vendor that will guarantee “up to a 90 percent control for Hg 

emissions from coal-fired power plants based on its experience in the waste-to-energy industry. 

Fox Comments at 10; see also, id. at 8-12 (indicating that experience with waste combustors and 

incinerators is applicable to Utility Units). Unless EPA explains why the same or similar level of 

control cannot reasonably be applied to all Utility Units, the Agency cannot meet its burden to 

“require the maximum degree of reduction in emissions of the hazardous air pollutant . . . .” 42 

U.S.C. §112(d)(2). 

3. Numerous commercially available and technically feasible control techniques 

exist that would lower mercury emissions below the MACT floor. Throughout the preamble to 

the proposed mercury rule as well as other documents in the docket, EPA cites to numerous 

emission control and other technologies that can effectively reduce mercury emissions from 

Utility Units. For example, EPA cites sorbent injection, including activated carbon (AC) and 

chemically-impregnated AC, and selective catalytic reduction (SCR) and “[t]wo technologies 

that possibly could be used to further reduce the amount of vapor-phase Hg emitted from 

utilities.” 69 Fed. Reg. 4676. Some of these control technologies are discussed below. 

(a) Sorbent injection. EPA indicates that “due to their multiple internal pores and 

high specific surface areas, sorbents have the potential to improve the removal of Hg (mostly 

through the enhanced capture of elemental Hg; sorbents will also remove Hg++) as well as other 

gaseous pollutants . . .” 69 Fed. Reg. 4676. However, EPA concludes that “[a]lthough AC, 

chemically impregnated AC, and other sorbents show potential for improving Hg removal by 

conventional PM and SO2 controls, this technology is not currently available on a commercial 

basis and has not been installed, except on a demonstration basis, on any electric utility unit is 

the U.S. to date . . . Therefore, we do not believe these technologies provide a viable basis for 

going beyond-the-floor.” Id. Elsewhere EPA states that “sorbent injection is not currently 

available on a commercial basis and has not been demonstrated on a utility unit operating at full 

capacity over an extended period of time.” Id. at 4679. 

However, as indicated by Dr. Fox, sorbent injection is a commercially available, 

technically feasible technology. See generally Fox Comments at Section III.A. For example, 

Dr. Fox points out that emission data from “similar sources” both in the U.S. and abroad 

demonstrates that sorbent technology is achievable for Utility Units. Id. Dr. Fox also correctly 

notes that there is no requirement in Clean Air Act that a control “technology must operate ‘at 

full capacity over an extended period of time’ before it qualifies as a beyond-the-floor 

technology.” Id. at 14. In fact, as Dr. Fox indicates, “[o]ne can determine, based on pilot-, field, 

and/or full-scale demonstration tests that a technology ‘is achievable’ . . . .” Id. 
41

Accordingly, it is clear that sorbent injection is a commercially available, technically 

feasible and achievable method for reducing mercury emissions from Utility Units, and this 

technology must be considered and incorporated into EPA’s beyond-the-floor MACT analysis. 

(b) Selective catalytic reduction. EPA states that “SCR has been shown... to have the 

ability to transform certain species of Hg into other speciated forms that are easier for 

conventional PM and SO2 controls to capture.” 69 Fed. Reg. 4676. However, EPA also found 

that “SCR has not shown the same change-in-speciation effect on Hg emissions on all types of 

coal sources.” Id. at 4679. EPA also concluded that there was insufficient test data for lignitefired units and across all type of coal. See Id. at 4676. As a result, EPA did not explore the 

possibility of requiring SCR as a beyond-the-floor requirement. See id. (“With regard to the use 

of SCR, the EPA has inadequate information on which to base a beyond-the-floor standard.”). 

However, once again, Dr. Fox presents clear evidence that SCR is a commercially 

available, technically feasible control technology. See generally Fox. Comments at Section 

III.B. Dr. Fox points out that the “absence of data for one type of coal, lignite, is not a valid 

reason for rejecting it for all other coal types.” Id. at 20. Moreover, Dr. Fox cites several test 

results and concludes that “[t]his data is more than adequate to conclude that SCR plus 

downstream particulate and SO2 removal technologies are commercially available and achieve 

much higher Hg removals than proposed by EPA.” Id. at 22. 

Accordingly, it is clear that SCR is a commercially available, technically feasible and 

achievable method for reducing mercury emissions from Utility Units, and this technology must 

be considered and incorporated into EPA’s beyond-the-floor MACT analysis. 

(c) Coal washing. EPA indicates its desire to “promote, and give credit for, coal 

preparation practices that remove Hg before firing (i.e., coal washing or benefication),” but no 

coal preparation practices are addressed or considered in EPA’s analysis of beyond-the-floor 

standards. 69 Fed. Reg. 4672; see also, Beyond-the-floor analysis for existing and new coal- and 

oil-fired electric utility steam generating units national emission standards for hazardous air 

pollutants, Memorandum from Jeffrey Cole, RTI International to Bill Maxell, EPA, OAQPS, 

December 2003 (this technical analysis does not include any discussion of pre-combustion 

techniques such as coal washing or fuel substitution). EPA has not demonstrated that coal 

washing is not currently available to all units. Accordingly, its complete failure to address this 

important mercury reduction technique is a major flaw in EPA’s analysis of beyond-the-floor 

standards. 

In fact, Dr. Fox indicates that “[a]bout 80 percent of the eastern and midwestern 

bituminous coal is currently washed to meet customer specifications for heating value, ash 

content, and sulfur content. Other coals could also be washed. Thus, this is a mature technology 

that should have been evaluated as a technically feasible portfolio technology.” Fox Comments 

at 26-7. Dr. Fox also cites several studies indicating the availability and effectiveness of coal 

washing as a technology to remove mercury. See generally id. at Section III.E. Moreover, the 

EPA has recognized coal washing as a viable method for removing mercury from coal. See U.S. 

EPA, Mercury Study Report to Congress, Volume I: Study of Hazardous Air Pollutant Emissions 

from Electric Utility Steam Generating Units – Final Report to Congress, Report EPA-453/R-
42

98-004a, ES-19 (February, 1998) (“Other various pollution prevention strategies, such as coal 

cleaning, have shown some effectiveness in reducing utility emissions of mercury.”). Dr. Fox 

also indicates that “[t]he European Commission identified coal washing as a viable method to 

reduce Hg emissions from coal-fired plants.” Fox Comments at 29-30 (citation omitted). 

Likewise, the Massachusetts Department of Environmental Protection “concluded that coal 

washing is a feasible method for control of Hg from coal-fired power plants.” Id. at 30. 

Accordingly, it is clear that coal washing is a commercially available, technically feasible 

and achievable method for reducing mercury emissions from Utility Units, and this technology 

must be considered and incorporated into EPA’s beyond-the-floor MACT analysis. 

(d) In addition to the methodologies identified by EPA, numerous additional 

practicable mercury control technologies are available or are currently under development. In 

addition to sorbent injection, SCR and coal washing, Dr. Fox has identified numerous other 

control options that are currently available or are under development. For example, Dr. Fox has 

identified fixed carbon beds and combustion modifications as two technologies that are currently 

available. See Fox Comments at 25-6. Moreover, Dr. Fox has also identified numerous 

additional control technologies that are currently under development and that are reasonably 

expected to become commercially available. These additional control technologies include: 

multipollutant removal processes that achieve greater than 90 percent mercury reduction; 

sorbents such as sodium tetrasulfide, amended silicates, and various carbon-based sorbents that 

are cheaper and more effective than activated carbon; mercury oxidizing methods; amalgamation 

with noble metals; plasma enhanced electrostatic precipitator technology; and enhanced wet 

scrubbing. See generally id. at Section IV. Dr. Fox concludes that "[t]hese near-commercial 

technologies are generally applicable to all coals," have demonstrable potential to "achieve over 

90 percent Hg removal in commercial applications . . . are cost effective and have no adverse 

non-air quality health and environmental impacts or energy requirements." Id. at 2. 

Accordingly, these additional mercury control technologies must be considered and 

incorporated into EPA's beyond-the-floor MACT analysis. 

4. EPA fails to provide any evidence that the above achievable additional reductions 

are not cost effective, result in non-air quality health or environmental impacts, or cause energy 

requirement concerns. As required by the Clean Air Act, EPA must “require the maximum

degree of reduction in emissions . . . that the Administrator, taking into consideration the cost of 

achieving such emission reduction, and any non-air quality health and environmental impacts 

and energy requirements, determines is achievable . . .” 42 U.S.C. §7412(d)(2) (emphasis 

added). As shown above, there are numerous emission control and pre-combustion techniques 

that are currently available and economically viable for reducing mercury emissions from Utility 

Units. Beyond some general statements that such technologies have not been adequately tested 

or may not be feasible for all units in a source category, EPA has failed to provide any evidence 

that such technologies would not support a beyond-the-floor standard due to cost, non-air quality 

health and environmental impacts or energy requirements. Indeed Dr. Fox has concluded that 

“[t]here are a large number of technically feasible, economic, technologies with no adverse nonair quality health and environmental impacts and energy requirements, which can be used to 

control Hg.” Fox Comments at 3. Accordingly, EPA is required to develop beyond-the-floor 
43

MACT standards that require the degree of emission reductions achievable by those 

technologies. 

5. Greater than 90 percent mercury reduction is currently feasible for all Utility 

Units. As Dr. Fox notes in her comments, several state agencies have determined that a very 

high reduction of mercury from coal-fired power plants is currently achievable. For example, 

Dr. Fox notes that Massachusetts has recently concluded "that there is strong evidence that the 

removal of 85-90+% of the mercury in the flue gas is technologically and economically feasible 

for coal-fired power plants at the present time." Fox Comments at 45 (emphasis added, citation 

omitted). Similarly, Connecticut has enacted legislation that requires a 90 percent mercury 

removal efficiency for coal-fired Utility Units. See id. 

Moreover, Dr. Fox cites an October 2002 press release from the Northeast States for 

Coordinated Air Use Management ("NESCAUM") that reported that "[t]oxic mercury emissions 

from power plants could be reduced by over 90 percent - from 48 tons annually down to only 7 

tons annually - through a combination of benefits achieved from existing air pollution controls 

and utilization of commercially available mercury reduction technologies." Id. at 46-7 (citation 

omitted). 

In addition, Dr. Fox references a consent decree that U.S.EPA recently signed with PSEG 

Fossil in New Jersey that requires a 90 percent reduction in mercury emissions. See id. at 47. 

Dr. Fox also notes that "recent case-by-case best available control technology (“BACT”) and 

MACT analyses prepared for new coal-fired power plant air permit applications have concluded 

that 90% to 95% Hg control is feasible." Id. at 44. 

As the evidence above and in Dr. Fox's comments indicate, it is clear that reductions in 

mercury emissions of 90 percent or greater is achievable and that the control technology is 

currently available, is technologically and economically feasible and is being applied in many 

instances throughout the U.S. 

6. The Clean Air Act requires EPA to develop a MACT standard that requires at 

least 90 percent reduction of mercury emissions from Utility Units. As indicated above, the 

Clean Air Act requires EPA to establish a MACT standard that results in the maximum degree of 

reduction in emissions that is achievable taking into account cost, non-air quality health and 

environmental impacts and energy requirements. See 42 U.S.C. §7412(d)(2). Moreover, it is 

clear that the determination of achievable emission reductions is not limited to emission 

reductions that are achievable through application of a single control technology, but rather the 

determination must be based on a consideration of all available control options (i.e., a portfolio 

approach). As is demonstrated in Dr. Fox's comments, the portfolio of commercially available 

control technologies includes numerous technologies that are cost effective and have no adverse 

non-air quality health and environmental impacts or energy requirements. While not all of these 

technologies may be available to each and every coal plant, each plant has the ability to use one 

or more of the technologies to achieve very significant (i.e., 90 percent or greater) mercury 

emission reductions. Accordingly, Dr. Fox has concluded that “[o]ne or more of these 

technologies from this portfolio could be deployed today to reduce Hg from each of the plants in 

the entire US fleet of coal-fired power plants by at least 90%.” Fox Comments at 4. 
44

Therefore, EPA is required to consider and incorporate the entire portfolio of control 

technologies and develop a MACT standard that requires mercury reductions of at least 90 

percent. 

B. Trust responsibility requires EPA to go beyond the MACT floor. It is critical to 

keep in mind the human cost of the decisions involved in this rulemaking. The mercury 

contamination of resources that FCPC members count on for their culture creates an unfair 

dilemma. FCPC members have to choose between, on the one hand, risking their health and the 

health of loved ones if they continue to use water, fish, and other resources tainted with lethal 

methylmercury, and, on the other hand, stopping cultural activities that connect them to their 

community, their past, and to their natural surroundings. 

The question of where to set the MACT floor is, in essence, a question of how much 

pollution should be condoned by EPA. Where good science demonstrates that reductions much 

more significant than those contemplated by EPA in this proposal are possible and feasible, the 

trust responsibility requires EPA to rethink its proposal in consultation with the tribes. EPA’s 

Indian Policy, which EPA specifically reaffirmed in 2001, underscores EPA’s commitment to 

protecting resources that tribes rely upon. 

IX Regulation Under Section 111. 

A. EPA is required to regulate under Section 112, not Section 111. As explained in 

detail in section VI of these comments, EPA is required to regulate mercury emissions from 

Utility Units under section 112 of the Clean Air Act. EPA has previously found that regulation 

of Utility Units under section 112 is appropriate and necessary and has listed coal- and oil-fired 

electric utility steam generating units as a source category under section 112(c) of the Act. 65 

Fed. Reg. 79826. This regulatory finding cannot be undone simply because EPA now believes it 

also has the authority to regulate Utility Units under section 111. In fact, EPA cannot regulate 

under section 111 because mercury is a listed HAP. See 42 U.S.C. §111(d)(a)(A)(i). Moreover, 

EPA cannot delist Utility Units from the list of source categories required to be regulated under 

section 112 absent a finding that mercury emissions from Utility Units will not be a hazard to 

public health or the environment. This is a finding that EPA has not and cannot make. 

Accordingly, EPA is statutorily required to regulate mercury emissions from Utility Units under 

section 112 of the Clean Air Act. 

B. Even if EPA could properly regulate mercury emissions from utility units under 

section 111 rather than section 112, its proposed cap-and-trade program fails to meet clear Clean 

Air Act requirements. Section 111 requires the EPA to establish “standards of performance” for 

new and existing source categories that EPA determines “causes, or contributes significantly to, 

air pollution which may reasonably be anticipated to endanger public health or welfare.” See 42 

U.S.C. § 7411(b) and (d). The term “standard of performance” is defined as “a standard for 

emissions of air pollutants which reflects the degree of emission limitation achievable through 

the application of the best system of emission reduction which (taking into account the cost of 

achieving such reduction and any non-air quality health and environmental impact and energy 

requirements) the Administrator determines has been adequately demonstrated.” 42 U.S.C. 
45

§ 7411(a)(1) (emphasis added). For the reasons discussed below, EPA’s proposed cap-and-trade 

program cannot qualify as a proper standard of performance under section 111. 

1. Lack of authority for trading under Sections 111. EPA interprets the term 

“standard of performance” in section 111 to include a cap-and-trade program. See 69 Fed. Reg. 

4697 (“In today’s action, EPA proposed to interpret the term ‘standard of performance,’ as 

applied to existing sources, to include a cap-and-trade program.”). The term “standard of 

performance” is defined as “a standard for emissions of air pollutants which reflects the degree 

of emission limitation achievable through the application of the best system of emission 

reduction which (taking into account the cost of achieving such reduction and any non-air quality 

health and environmental impact and energy requirements) the Administrator determines has 

been adequately demonstrated.” 42 U.S.C. § 7411(a)(1) (emphasis added). 

EPA admits that the term does not “explicitly . . . include or exclude an emissions cap 

and allowance trading program.” 69 Fed. Reg. 4697. This is in stark contrast to other provisions 

of the Clean Air Act where Congress expressly indicated its desire for an emissions trading 

program. For example, in the acid rain provisions, Congress clearly authorized an "allowance 

transfer system." See 42 U.S.C. §7651b(b) ("Allowances allocated under this subchapter may 

be transferred among... affected sources under this subchapter and any other person who holds 

such allowances . . . ."). Similarly, Congress authorized emission trades in its offset provisions 

relating to nonattainment areas. See 42 U.S.C. §7503(c) ("The owner or operator of a new or 

modified major stationary source may comply with any offset requirement . . . by obtaining 

emission reductions ... from the same source or other sources in the same nonattainment 

area . . . .") (emphasis added). Accordingly, it is clear that where Congress envisioned an 

emissions trading program it expressly provided for such a program in its statutory language. 

This is not the case in section 111. 

Nevertheless, EPA makes a strained and unsupportable reading of the term standard of 

performance by parsing the definition into small components, skipping important elements (e.g., 

deleting the word “best” from the phrase “best system of emission reduction”) and then bootstrapping each component into a definition that supports a trading program. 

This interpretation is supported by a careful reading of the section 111(a) 

definition of the term... A requirement for a cap-and-trade program (i) constitutes 

a “standard for emissions of air pollutants” (i.e., a rule for air emissions), (ii) 

“which reflects the degree of emission limitation achievable” (i.e., which requires 

an amount of emissions reductions that can be achieved), (iii) “through 

application of (a)... system of emission reduction” (i.e., in this case, a cap-andtrade program that caps allowance at a level lower than current emissions.)” 

Id.

This type of strained and unsupportable interpretation is inconsistent with a natural 

reading of the standard which implies a straightforward numerical emission limitation. Indeed, 

section 111(a)(1) specifically defines a “standard of performance” as “standard for emission of 

pollutants which reflects the degree of emission limitation achievable through application of the 
46

best system of pollution reduction.” Thus, section 111 requires EPA to develop emission 

standards that reflect the degree of emission limitation that is achievable using the best system of 

pollution reduction, not simply propose a cap-and-trade system in which caps are not tied to the 

emission reductions achievable with the best system of pollution reduction. 

EPA also “proposes to determine that a cap-and-trade program has been adequately 

determined to be the best system for reducing Hg emissions from coal-fired Utility Units.” 69 

Fed. Reg. 4697. As support for its proposal, EPA cites the acid rain SO2 and 1998 NOx SIP Call 

rules as effective and successful examples of trading programs. See id. at 4696 (“The success of 

the Acid Rain cap-and-trade program for utility SO2 emissions, which EPA duplicated in large 

measure with the NOx SIP Call cap-and-trade program for, primarily, utility NOx emissions, 

leads EPA to conclude that a cap-and-trade program for Hg emissions from utilities qualifies as 

the 'best system of emission reductions’ that ‘has been adequately demonstrated”). 

However, even if it is assumed that the acid rain and NOx SIP Call trading programs are 

effective and successful, such trading programs have no application to a mercury control 

program. Clearly SO2 and NOx are quite different contaminants than mercury. Some of the most 

important differences include different dispersion patterns, different health and environmental 

effects and different control technologies for reducing emissions. As a result, trading programs 

for SO2 and NOx provide no support that a trading program for mercury will be effective or 

successful. Indeed, EPA has provided no evidence that the SO2 and NOx trading programs are 

even the “best system” for reducing SO2 and NOx emissions. Accordingly, EPA has not met its 

burden of adequately demonstrating that a cap-and-trade program will be the best system for 

reducing mercury emissions. 

2. The emission levels proposed under EPA’s cap-and-trade program fail to meet 

section 111’s emission limitation requirements. In its proposed rule, EPA “proposes to 

determine that a cap-and-trade program has been adequately determined to be the best system for 

reducing Hg emissions from coal-fired Utility Units.” 69 Fed. Reg. 4697. However, EPA does 

not and cannot demonstrate that the emission reductions required under its proposed cap-andtrade program reflect “the degree of emission limitation achievable through the application of 

the best system of emission reduction . . . [which] has been adequately demonstrated.” 42 U.S.C. 

§7411(a)(1) (emphasis added) 

EPA’s proposed cap (eventual 70 percent reduction) and the extensive timeframe EPA 

proposes to allow to meet the cap (at least until 2018) clearly do not require the level of 

emissions reductions that is currently achievable with available and demonstrated control 

technology. This fact is shown by the attached comments by Dr. Fox, which show that 

reductions of greater than 90 percent are achievable now. See Fox Comments at 2 

(“[t]echnologies are generally applicable to all coals and coal-fired boilers and are able to 

achieve over 90% Hg removal, either individually or in combination, from the entire existing 

coal-fired fleet.”). Moreover, EPA specifically recognizes that the level of emission reductions 

under the proposed cap-and-trade program may not constitute the “best system” of emission 

reductions. See 69 Fed. Reg. 4687 (“The EPA retains the authority to revise its conclusions as to 

what constitutes the ‘best system’ of emissions reductions for existing sources, and, therefore, to 

revise the standard of performance, to require additional reductions or controls . . .”). 
47

Under its proposed cap-and-trade program, EPA states that its “primary goal is to reduce 

power plant emissions of Hg by 70 percent from today’s levels by 2018.” 69 Fed. Reg. 4698. 

However, EPA provides very little support or rationale for its goal of a 70 percent reduction in 

mercury emissions beyond stating that “[o]ur proposed 15 ton cap in 2018 is grounded largely in 

the modeling completed in support of the President’s Clear Skies initiative.” Id. at 4699. 

Indeed, EPA admits that “we fully expect other Hg air pollution control technologies such as 

ACI and/or one or more of the breakthrough technologies will have been adequately 

demonstrated before 2018.” 

EPA also proposes to set a phase I mercury cap to be implemented by 2010. However, 

this cap simply relies on other controls required as part of a different rulemaking for other air 

contaminants. Id. (“We are also proposing to set a near-term cap in 2010 at a level that reflects 

the maximum reduction in Hg emissions that could be achieved through the installation of FGD 

and SCR units that will be necessary to meet the 2010 caps for SO2 and NOx in our proposed 

IAQR.”). As a result, Utility Units will not be required to take any actions specifically designed 

to reduce mercury emissions for almost a decade and a half. 

C. Any 111 standard should be at least as stringent as a properly implemented 

MACT standard. It is important to note that the substantive emission standards under section 

111 are essentially equivalent to the MACT standard under section 112. Section 111 requires a 

standard of performance “which reflects the degree of emission limitation achievable through the 

application of the best system of emission reduction which (taking into account the cost of 

achieving such reduction and any non-air quality health and environmental impact and energy 

requirements) the Administrator determines has been adequately demonstrated.” 42 U.S.C. 

§ 7411(a)(1). Similarly, section 112(d)(2) requires “the maximum degree of reduction in 

emissions. . . that the Administrator, taking into consideration the cost of achieving such 

emission reduction, and any non-air quality health and environmental impacts and energy 

requirements, determines is achievable. . .” 42 U.S.C. § 7412(d)(2). Thus, one standard requires 

application of the “best system demonstrated,” while the other standard requires the “maximum 

degree of reduction achievable,” with each taking into consideration the same cost, non-air 

health and environment impacts and energy requirements. 

As demonstrated in section VI above, a correct MACT floor analysis clearly shows that a 

MACT standards under section 112 can be set at levels much lower than those in EPA’s current 

proposal even without considering the application of additional mercury control technologies. 

Indeed, a proper MACT floor analysis results in standards that allow less than one-half to less 

than one-fifth of the emissions that EPA’s proposed MACT standards and its similar Phase I 

mercury cap would allow. Moreover, this corrected MACT floor analysis shows that these 

reductions, which are likely substantially greater than what EPA proposes to achieve in 2018 

(i.e., fourteen years from now) are presently available. 

In addition, as described above in section VIII.A, there are numerous pre-combustion 

measures and control technologies that are currently available and could be employed to reduce 

mercury emissions even further -- to at least 90 percent control -- under a corrected beyond-thefloor MACT standard. All of these measures and technologies are cost effective, and do not 

create significant non-air health or environmental impacts or energy requirements. Accordingly, 
48

if EPA regulates mercury emissions through a cap-and-trade system, the actual cap level as well 

as the time allowed to meet that cap should be at least as stringent as the level of control that 

would be achieved under a correct beyond-the-MACT-floor analysis pursuant to section 112. 

D. The presumed efficiencies inherent in a trading program support a cap lower than 

that achievable with a traditional MACT standard. EPA argues that a trading program will 

produce greater reduction than a section 112 MACT standard. For example, EPA states that “a 

trading approach is better suited to stimulating development and adoption of new technologies 

[to reduce mercury emissions].” 69 Fed. Reg. 4688. EPA also argues that “a MACT approach 

will not stimulate innovation in Hg control technology as well as a cap-and-trade approach 

because it does not reward reductions beyond the required levels.” Id. In its Regulatory Finding, 

EPA concluded that “[t]rading also can allow for a greater level of control because it offers the 

opportunity for greater efficiency in achieving control.” 65 Fed. Reg. 79830. Likewise, EPA 

now cites the acid rain SO2, and NOx SIP Call programs as examples of successful and effective 

emission trading programs. See 69 Fed. Reg. 4697. 

Thus, EPA has found that a trading program will stimulate development of new and 

better mercury control technologies and allow for a greater level of control. Accordingly, to 

meet section 111’s requirement of setting a standard of performance that reflects the degree of 

reduction achievable, EPA should establish a cap level that would be reflective of the greater 

levels of mercury reductions that would be achievable under a trading program. If EPA’s stated 

premise is correct, this level should be considerably lower than the level that would be achieved 

by applying a correct beyond-the-floor MACT analysis. 

E. Under trust responsibility, EPA is required to act more quickly and forcefully in 

regulating mercury emissions under Section 111. If EPA chooses to improperly rescind its 

Section 112 determination and to pursue regulation under Section 111 instead, it is still obliged 

to take all steps necessary to fulfill its trust responsibility to tribes. FCPC and other tribes 

affected by mercury emissions from coal-fired power plants will continue to be harmed until 

EPA acts to curb this deadly pollution. 

The trust responsibility requires EPA to act towards FCPC and other affected tribes as a 

fiduciary would act towards a beneficiary. This means that, even if EPA mistakenly chooses 

Section 111 as the vehicle for curbing mercury emissions from coal-fired power plants, it must 

aggressively take up this task and set the most protective emission limit consistent with science 

and the Clean Air Act. 

X Trading program must address “hot-spots.”

Although EPA’s authority to promulgate a cap-and-trade program is unclear at best, if 

such a program is ultimately selected, EPA must ensure that toxic hot-spots are not created as a 

result. Indeed, in its Regulatory Finding, EPA recognized the “concerns about the local impacts 

of mercury emission and any regulatory scheme for mercury that incorporates trading or other 

approaches that involve economic incentives must be constructed in a way that assures that 

communities near the source of emission are adequately protected.” 65 Fed. Reg. 79830. 

Furthermore, as other stakeholders have noted, “modeling results suggest that Hg deposition 
49

from emission from Utility Units may be higher in certain regions of the country. . . In addition, 

the ecosystems in some regions (e.g., the lakes regions of the Upper Midwest) may be more 

sensitive to Hg deposition.” 69 Fed. Reg. 4701. Indeed, the lake region of the Upper Midwest is 

the home to the FCPC and is of utmost concern to its people. Moreover, a recent study by New 

Hampshire state officials suggested that localized mercury deposition is a much greater concern 

than EPA has recognized. See Obey, Doug, New Hampshire Data May Aid Opponents Of 

Emissions Trading In Mercury Rule, Inside Washington Publishers,9 (April 8, 2004). 

Despite the real and serious concern about toxic hot-spots, EPA claims that it “does not 

expect any local or regional hot-spots.” Id. at 4701. EPA makes several brief arguments to 

support this claim (see generally id. at 4702-3), however, these arguments are anecdotal at best, 

and are not supported by adequate science. For example, EPA concludes that large Utility Units 

with large localized deposition footprints, will be most likely to control emissions and generate 

emission credits. Id. at 4702. However, there is no support for this argument and it is just as 

likely that the decision to install controls or buy credits will be based on the type of coal burned 

and the existing configuration of the Utility Unit rather than simply the size of the Unit. 

EPA also argues that “the economics of the trading system are likely to favor controls of 

Hg that are likely to be deposited locally, thereby reducing any local hot-spots.” Id. However, 

this argument assumes that the types of mercury that are deposited locally are limited to Hg++ 

and particulate mercury, and that gaseous mercury will be transported long distances and will not 

affect local or regional deposition. EPA then argues that Hg++ and particulate mercury are the 

forms most easily controlled and that these forms of mercury will be effectively controlled as 

Utilities comply with other emission requirements (i.e., EPA’s new fine particle and ozone 

control requirements). However, EPA does not support the assumption that gaseous mercury 

will not contribute to hot-spots or that other emission requirements will effectively address the 

localized deposition of Hg++ and particulate mercury. Accordingly, if a trading program is 

promulgated, EPA must take all appropriate actions to ensure that local or regional hot-spots are 

not created as a result of emission trades. 

A. Hot-spots in upper midwest are a real concern because of the use of western 

subbituminous coal, from which it is more difficult to obtain mercury reductions than eastern 

bituminous coal. The toxic hot spot concern discussed above is a primary concern of the FCPC. 

Indeed, EPA has recognized that the very area so critical to the FCPC’s way of life is at 

increased risk to mercury deposition. 69 Fed. Reg. 4701 (“[T]he ecosystems in some regions 

(e.g., the lakes regions of the Upper Midwest) may be more sensitive to Hg deposition.”). Of 

particular concern to the FCPC is the fact that most Utility Units in the upper midwest burn a 

western subbituminous coal. It is apparently much more difficult and costly to reduce mercury 

emissions from western subbituminous coal than it is from eastern bituminous coal. See Fox 

Comments at 2 (“the costs to control Hg from units fired on lignites and sub-bituminous coals 

will generally be higher than on units fired on bituminous coals”). As a result, utilities burning 

eastern bituminous coal will be more likely to install mercury control technologies than will the 

utilities burning western subbituminous coal. Thus, utilities in the upper midwest are likely to 

 

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forego emission controls and would instead purchase emission credits from the utilities burning 

eastern coal that have installed mercury controls. Because the utilities burning eastern coal are 

likely to be located on the eastern side of the United States, it is unlikely that the upper midwest 

will realize any localized benefit from the mercury reduction efforts undertaken by those utilities. 

The end result is that FCPC’s home and indeed the entire lakes area of the upper midwest (which 

is particularly sensitive to mercury deposition and thus most needing of real reductions in 

mercury emissions) may experience little-to-no benefit from EPA’s proposed rule. 

B. Requirement under trust responsibility and Environmental Justice Doctrine to fully 

analyze and address hot-spot concerns to ensure that tribes are not adversely effected. It is hard 

to overstate how troubling the hot-spot is to FCPC. EPA, which has a clear legal mandate to 

reduce the mercury emissions that threaten the health, environment, and spiritual well-being of 

FCPC members, is not only not proposing means that would be the most certain of addressing 

this toxic threat, it is proposing an alternative that seems destined to leave FCPC out of the 

solution. 

As discussed above, the power plants that pollute the lands and waters that FCPC 

members rely upon for cultural and other needs are unlikely to reduce their mercury emissions 

under the proposed trading scheme. This means that, despite a clear legal mandate to reduce 

mercury emissions and despite their duty to protect public health and the environment, EPA is 

contemplating a scheme that would do nothing whatsoever for FCPC and other tribes. If the 

EPA Indian Policy and the federal trust responsibility are to mean anything, they have to mean 

that this is wrong. 

It is well established that, under the trust responsibility, federal agencies such as EPA 

must act with regards to tribes in the same way that a fiduciary must act towards a beneficiary. 

Here we see EPA proposing the opposite. The result of the trading scheme would be to place 

FCPC in a worse position than many non-native populations. Not only would FCPC members 

continue to face mercury poisoning of their resources, but the impact will continue to be more 

substantial that what non-natives would experience because of the added cultural importance 

these resources have to FCPC members. 

EPA has reaffirmed that the environmental justice doctrine requires “the fair treatment of 

people of all races, cultures, and incomes with respect to the development, implementation, and 

enforcement of environmental laws and policies. . . .” It is in no way fair that the mercury 

emission trading scheme outlined in the proposed rule would leave behind native populations 

like FCPC’s. 

At the very least, the trust responsibility and the environmental justice doctrine require 

that EPA much more carefully analyze the potential impact of the proposed trading scheme on 

FCPC and other similarly situated Indian populations. 

C. Potential means of preventing hot-spots. Given the serious concerns regarding the 

creation of toxic hot-spots under the proposed trading program, if EPA adopts a cap-and-trade 

rule, it must take all appropriate actions to ensure that such hot-spots do not result from its 

program. Some of the actions EPA should take are described below. 
51

(a) Require excess “offsets.” Although EPA claims that local or regional hot-spots 

will not occur, it nevertheless requests comments on “whether it would be appropriate to adjust 

the geographic scope of this program to introduce trading ratios between regions as a way of 

addressing regional differences should they occur.” 69 Fed. Reg. 4701. Because EPA has not 

and cannot adequately demonstrate that hot-spots will not occur under its proposed trading 

program, the EPA should require a greater amount of emission reductions or “offsets” for each 

trade. 

The offset ratio should be adjusted based on the ability of mercury reductions at one 

source to reduce mercury deposition in the area of influence of another source. For example, the 

trading ratio should be increased based on the distance from the utility units generating the 

credits to the utility unit purchasing the credits, since the greater the distance between the sources 

the less effect that reductions at one source will have at the other. Similarly, the trading ratio 

should be increased if the prevailing winds limit the ability of reductions at one plant to benefit 

the area impacted by another plant. The goal of such enhanced-offset requirements would be to 

ensure that any mercury reductions realized at units generating credits would have an equivalent 

environmental effect in the local area surrounding a unit that is purchasing those credits. 

These types of enhanced offset requirements would encourage sources to install mercury 

controls and would thus promote real and tangible reductions in mercury emissions by 

discounting credits, especially those credits received from sources located great distances from 

the unit purchasing the credits. Furthermore, because a greater number of credits would be 

required from units that are less likely to have a beneficial effect on the area impacted by the 

purchasing facility, this policy would encourage more trading that would result in true 

“localized” reductions of mercury. 

(b) Limit trades to a regional or basin-wide area. In addition to the enhanced offset 

requirements, trading should be limited to the region or basin in which mercury reductions will 

have a substantial impact. In other words, trading should be limited to those areas where it is 

shown that reductions at one unit will have a substantial positive impact (i.e., net reduction in 

mercury deposition) in the area surrounding the other unit. 

(c) Limit amount of credits that can be purchased to meet emission limits. In order to 

ensure that all areas and regions of the country experience some benefit from the mercury 

reduction rule, all utility units should be required to achieve some level of mercury reduction 

through the addition of add-on controls or other mercury reduction technologies. 

(d) Creation of natural resource damages fund to attempt to compensate entities 

impacted by hot-spots. Because of the high likelihood that a trading program, even with the 

protections identified above, will allow mercury hot-spots to continue to persist, EPA should also 

create a fund to compensate tribes, states, and other natural resouce trustees for the damages 

cause by these hot-spots. This fund could be created by assessing a surcharge on all mercury 

reduction credits that are traded. The creation of this fund would help to at least somewhat 

address the liability exposure of utilities to states, tribes, and others because of the damages that 

have been and will continue to be caused by their mercury emissions. 
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MWFCPC Comments on EPA_s CAMR Rulemaking.DOC 

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